The Paternal Right devolves to and is inherited by all the Children THO the perversity of our Author's Judgment and Nature may have driven him into the most gross Errors 't is not amiss to observe that many of those delivered by him proceed from his ignorance of the most important Differences between Father and Lord King and Tyrant which are so evident and irreconcilable that one would have thought no man could be so stupid as not to see it impossible for one and the same man at the same time to be Father and Master King and Tyrant over the same Persons But lest he should think me too scrupulous or too strict in inquiring after Truth I intend for the present to wave that inquiry and to seek what was good for Adam or Noah What we have reason to believe they desired to transmit to their Posterity and to take it for a perpetual Law in its utmost extent which I think will be of no advantage to our Author for this Authority which was universal during their lives must necessarily after their decease be divided as an Inheritance into as many parcels as they had Children The Apostle says If Children then Heirs Heirs of God and joint Heirs with Christ which alluding to the Laws and Customs of Nations could have bin of no force unless it had bin true and known to be so But if Children are Heirs or joint Heirs whatsoever Authority Adam or Noah had is inherited by every man in the world and that title of Heir which our Author so much magnifies as if it were annexed to one single person vanishes into nothing or else the words of the Apostle could have neither strength nor truth in them but would be built upon a false Foundation which may perhaps agree with our Author's Divinity Yet if the Apostle had not declared himself so fully in this Point we might easily have seen that Adam and Noah did leave their Children in that equality for Fathers are ever understood to embrace all their Children with equal Affection till the discovery of personal Vertues or Vices make a difference But the personal Vertues that give a reasonable preference of one before another or make him more fit to govern than the others cannot appear before he is nor can be annexed to any one Line Therefore the Father cannot be thought to have given to one Man or his Descendents the Government of his Brethren and their Descendents Besides tho the Law of England may make one man to be sole Heir of his Father yet the Laws of God and Nature do not so All the Children of Noah were his Heirs The Land promised to Abraham Isaac and Jacob was equally divided among their Children If the Children of Joseph made two Tribes it was not as the first born but by the Will of Jacob who adopted Ephraim and Manasseh and they thereby became his Sons and obtained an Inheritance equal to that of the other Tribes The Law allowed a double Portion to the first-begotten but this made a difference between Brothers only in proportion whereas that between Lord and Servant is in specie not in degree And if our Author's Opinion might take place instead of such a division of the common Inheritance between Brothers as was made between the Children of Jacob all must continue for ever Slaves to one Lord which would establish a difference in specie between Brethren which Nature abhors If Nature dos not make one man Lord over his Brethren he can never come to be their Lord unless they make him so or he subdue them If he subdue them it is an act of Violence contrary to Right which may consequently be recovered If they make him Lord 't is for their own sakes not for his and he must seek their good not his own lest as Aristotle says he degenerate from a King into a Tyrant He therefore who would perswade us that the Dominion over every Nation dos naturally belong to one Man Woman or Child at a venture or to the Heir whatsoever he or she be as to Age Sex or other Qualifications must prove it good for all Nations to be under them But as Reason is our Nature that can never be natural to us that is not rational Reason gives Paria paribus equal Power to those who have equal Abilities and Merit It allots to every one the part he is most fit to perform and this fitness must be equally lasting with the Law that allots it But as it can never be good for great Nations having men amongst them of Vertue Experience Wisdom and Goodness to be governed by Children Fools or vicious and wicked Persons and we neither find that the Vertues required in such as deserve to govern them did ever continue in any race of men nor have reason to believe they ever will it can never be reasonable to annex the Dominion of a Nation to any one Line We may take this upon Solomon's word Wo to thee O Land when thy King is a Child and thy Princes eat in the morning And I wish the experience of all Ages did not make this Truth too evident to us This therefore can never be the Work much less the Law of Nature and if there be any such thing in the world as the Dominion over a Nation inseparably united to a Man and his Family it can have no other Root than a civil or municipal Law which is not the subject of our Discourse Moreover every Father's Right must cease when he ceases to be or be transmitted to those who being also Fathers have the same Title to it And tho the contrary method of annexing the whole Inheritance to one Person or exposing all his Brethren to be destroyed by his rage if they will not submit may conduce to the enlargement of a proud and violent Empire as in Turky where he that gains the Power usually begins his Reign with the slaughter of his Brothers and Nephews yet it can never agree with the piety gentleness and wisdom of the Patriarchs or the Laws of God and Nature These things being agreed we need not trouble our selves with the Limits or Definition of a Family and as little with the Titles given to the Head of it 'T is all one to us whether it be confined to one Roof and Fire or extended farther and none but such as are strangers to the practice of mankind can think that titles of Civility have a power to create a right of Dominion Every man in Latin is called Dominus unless such as are of the vilest condition or in a great subjection to those who speak to them and yet the word strictly taken relates only to Servus for a Man is Lord only of his Servant or Slave The Italians are not less liberal of the Titles of Signore and Padrone and the Spaniards of Sennor but he would be ridiculous in those Countries who thereupon should arrogate to himself a right of Dominion over those who
we examine things more distinctly we shall find that all things varied according to the humour of the Prince Whilst Pharaoh lived who had received such signal Services from Joseph the Israelites were well used but when another rose up who knew him not they were persecuted with all the extremities of injustice and cruelty till the furious King persisting in his design of exterminating them brought destruction upon himself and the Nation Where the like Power hath prevailed it has ever produced the like effects When some great men of Persia had perswaded Darius that it was a fine thing to command that no man for the space of thirty days should make any Petition to God or Man but to the King only Daniel the most wise and holy Man then in the world must be thrown to the Lions When God had miraculously saved him the same Sentence was passed against the Princes of the Nation When Haman had filled Ahasuerus his ears with Lies all the Jews were appointed to be slain and when the fraud of that Villain was detected leave was given them with the like precipitancy to kill whom they pleased When the Israelites came to have Kings they were made subject to the same Storms and always with their Blood suffer'd the Penalty of their Prince's madness When one kind of fury possessed Saul he slew the Priests persecuted David and would have killed his brave Son Jonathan When he sell under another he took upon him to do the Priest's Office pretended to understand the Word of God better than Samuel and spared those that God had commanded him to destroy Upon another whimsey he killed the Gibeonites and never rested from finding new Inventions to vex the People till he had brought many thousands of them to perish with himself and his Sons on Mount Gilboa We do not find any King in Wisdom Valour and Holiness equal to David and yet he falling under the temptations that attend the greatest Fortunes brought Civil Wars and a Plague upon the Nation When Solomon's heart was drawn away by strange Women he filled the Land with Idols and oppressed the People with intolerable Tributes Rehoboam's Folly made that Rent in the Kingdom which could never be made up Under his Successors the people served God Baal or Ashtaroth as best pleased him who had the Power and no other marks of Stability can be alledged to have bin in that Kingdom than the constancy of their Kings in the practice of Idolatry their cruelty to the Prophets hatred to the Jews and civil Wars producing such Slaughters as are reported in few other Stories The Kingdom was in the space of about two hundred years possessed by nine several Families not one of them getting possession otherwise than by the slaughter of his Predecessor and the extinction of his Race and ended in the Bondage of the ten Tribes which continues to this day He that desires farther proofs of this Point may seek them in the Histories of Alexander of Macedon and his Successors He seems to have bin endow'd with all the Vertues that Nature improved by Discipline did ever attain so that he is believed to be the Man meant by Aristotle who on account of the excellency of his Vertues was by Nature framed for a King and Plutarch ascribes his Conquests rather to those than to his Fortune But even that Vertue was overthrown by the Successes that accompanied it He burnt the most magnificent Palace of the world in a frolick to please a mad drunken Whore Upon the most frivolous suggestions of Eunuchs and Rascals he kill'd the best and bravest of his Friends and his Valour which had no equal not subsisting without his other Vertues perished when he became lewd proud cruel and superstitious so as it may be truly said he died a Coward His Successors did not differ from him When they had killed his Mother Wise and Children they exercised their fury against one another and tearing the Kingdom to pieces the Survivors left the Sword as an Inheritance to their Families who perished by it or under the weight of the Roman Chains When the Romans had lost that Liberty which had bin the Nurse of their Vertue and gained the Empire in lieu of it they attained to our Author 's applauded Stability Julius being slain in the Senate the first Question was whether it could be restored or not And that being decided by the Battel of Philippi the Conquerors set themselves to destroy all the eminent men in the City as the best means to establish the Monarchy Augustus gained it by the death of Antonius and the corruption of the Souldiers and he dying naturally or by the fraud of his Wife the Empire was transferred to her Son Tiberius under whom the miserable People suffer'd the worst effects of the most impure Lust and inhuman Cruelty He being stifled the Government went on with much uniformity and stability Caligula Claudius Nero Galba Otho Vitellius regularly and constantly did all the mischief they could and were not more like to each other in the Villanies they committed than in the Deaths they suffered Vespasian's more gentle Reign did no way compensate the Blood he spilt to attain the Empire And the Benefits received from Titus his short-liv'd Vertue were infinitely overbalanced by the detestable Vices of his Brother Domitian who turned all things into the old Channel of Cruelty Lust Rapine and Perfidiousness His slaughter gave a little breath to the gasping perishing World and men might be vertuous under the Government of Nerva Trajan Antoninus Aurelius and a few more tho even in their time Religion was always dangerous But when the Power sell into the hands of Commodus Heliogabalus Caracalla and others of that sort nothing was sase but obscurity or the utmost excesses of lewdness and baseness However whilst the Will of the Governor passed for a Law and the Power did usually sall into the hands of such as were most bold and violent the utmost security that any man could have for his Person or Estate depended upon his temper and Princes themselves whether good or bad had no longer Leases of their lives than the furious and corrupted Soldiers would give them and the Empire of the World was changeable according to the Success of a Battel Matters were not much mended when the Emperors became Christians Some favour'd those who were called Orthodox and gave great Revenues to corrupt the Clergy Others supported Arianism and persecuted the Orthodox with as much asperity as the Pagans had done Some revolted and shewed themselves more fierce against the professors of Christianity than they that had never had any knowledg of it The World was torn in pieces amongst them and osten suffered as great miseries by their sloth ignorance and cowardice as by their fury and madness till the Empire was totally dissolved and lost That which under the weakness and irregularity of a popular Government had conquer'd all from the Euphrates to Britain and
and them before the Lord if he had bin already King and if those Acts had bin empty Ceremonies conferring no Right at all I dare not say that a League dos imply an absolute equality between both Parties for there is a Foedus inequale wherein the weaker as Grotius says dos usually obtain protection and the stronger honour but there can be none at all unless both Parties are equally free to make it or not to make it David therefore was not King till he was elected and those Covenants made and he was made King by that Election and Covenants This is not shaken by our Author's supposition That the People would not have taken Joas Manasseh or Josiah if they had had a right of chusing a King since Solomon says Wo unto the Kingdom whose King is a Child For first they who at the first had a right of chusing whom they pleased to be King by the Covenant made with him whom they did chuse may have deprived themselves of the farther execution of it and rendred the Crown hereditary even to Children unless the Conditions were violated upon which it was granted In the second place if the infancy of a King brings Wo upon a People the Government of such a one cannot be according to the Laws of God and Nature for Governments are not instituted by either for the pleasure of a Man but for the good of Nations and their Weal not their Wo is sought by both and if Children are any where admitted to rule 't is by the particular Law of the place grounded perhaps upon an opinion that it is the best way to prevent dangerous Contests or that other ways may be found to prevent the Inconveniences that may proceed from their weakness Thirdly It cannot be concluded that they might not reject Children because they did not such matters require positive Proofs Suppositions are of no value in relation to them and the whole matter may be altered by particular Circumstances The Jews might reasonably have a great veneration for the House of David they knew what was promised to that Family and whatever respect was paid or privilege granted on that account can be of no advantage to any other in the world They might be farther induced to set up Joas in hope the defects of his Age might be supplied by the Vertue Experience and Wisdom of Jehoiada We do not know what good opinion may have bin conceived of Manasseh when he was twelve years old but much might be hoped from one that had bin virtuously educated and was probably under the care of such as had bin chosen by Hezekiah and tho the contrary did fall out the mischiefs brought upon the People by his wicked Reign proceeded not from the weakness of his childhood but from the malice of his riper years And both the Examples of Joas and Josiah prove that neither of them came in by their own right but by the choice of the People Jehoiada gathered the Levites out of all the Cities of Judah and the chief of the Fathers of Israel and they came to Jerusalem And all the Congregation made a Covenant with the King in the House of God and brought out the King's Son and put upon him the Crown and gave him the Testimony and made him King whereupon they slew Athaliah And when Ammon was stain the people of the Land slew them that had conspired against King Ammon and the people of the Land made Josiah his Son King in his stead which had been most impertinent if he was of himself King before they made him so Besides tho Infancy may be a just cause of excepting against and rejecting the next Heir to a Crown 't is not the greatest or strongest 'T is far more easy to find a Remedy against the solly of a Child if the State be well regulated than the more rooted Vices of grown men The English who willingly received Henry the sixth Edward the fifth and sixth tho Children resolutely opposed Robert the Norman And the French who willingly submitted to Charles the ninth Lewis the thirteenth and fourteenth in their Infancy rejected the lewd remainders of Meroveus his Race Charles of Lorrain with his Kindred descended from Pepin Robert Duke of Burgundy with his Descendents and Henry of Navarr till he had satisfied the Nobility and People in the point of Religion And tho I do not know that the Letter upon the words Vaeregnocujus Rex puer est recited by Lambard was written by Eleutherius Bishop of Rome yet the Authority given to it by the Saxons who made it a Law is much more to be valued than what it could receive from the Writer and whoever he was he seems rightly to have understood Solomon's meaning who did not look upon him as a Child that wanted years or was superannuated but him only who was guilty of Insolence Luxury Folly and Madness and he that said A wise Child was better than an old and foolish King could have no other meaning unless he should say it was worse to be governed by a wise Person than a Fool which may agree with the judgment of our Author but could never enter into the heart of Solomon Lastly Tho the practice of one or more Nations may indicate what Laws Covenants or Customs were in force among them yet they cannot bind others The diversity of them proceeds from the variety of mens Judgments and declares that the direction of all such Affairs depends upon their own Will according to which every People for themselves forms and measures the Magistracy and magistratical Power which as it is directed solely for the good hath its exercises and extent proportionable to the Command of those that institute it and such Ordinances being good for men God makes them his own SECT VIII There is no natural propensity in Man or Beast to Monarchy I See no reason to believe that God did approve the Government of one over many because he created but one but to the contrary in as much as he did endow him and those that came from him as well the youngest as the eldest Line with understanding to provide for themselves and by the invention of Arts and Sciences to be beneficial to each other he shewed that they ought to make use of that understanding in forming Governments according to their own convenience and such occasions as should arise as well as in other matters and it might as well be inferr'd that it is unlawful for us to build clothe arm defend or nourish our selves otherwise than as our first Parents did before or soon after the Flood as to take from us the liberty of instituting Governments that were not known to them If they did not find out all that conduces to the use of man but a Faculty as well as a Liberty was left to every one and will be to the end of the world to make use of his Wit Industry and Experience according to present Exigencies to
Moses Maimonides with all the best of the Jewish and Christian Authors had long before delivered the same Josephus says that Saul's first Sin by which he fell was that he took away the Aristocracy which he could not do if it had never bin established Philo imputes the institution of Kingly Government as it was in Israel neither to God nor his Word but to the fury of the sinful People Abarbenel says it proceeded from their delight in the Idolatry to which their Neighbours were addicted and which could be upheld only by a Government in practice and principle contrary to that which God had instituted Maimonides frequently says the same thing grounded upon the words of Hosea I gave them Kings in my Wrath and whosoever will call that a divine Institution may give the same name to Plagues or Famines and induce a necessity incumbent upon all men to go and search the one where they may find it and to leave their Lands for ever uncultivated that they may be sure of the other which being too bestial to be asserted by a man I may safely say the Hebrew Kings were not instituted by God but given as a punishment of their Sin who despised the Government that he had instituted and the above-mentioned Authors agree in the same thing calling the Peoples desire to have a King furious mad wicked and proceeding from their love to the Idolatry of their Neighbours which was suted to their Government both which were inconsistent with what God had established over his own People But waving the opinions of men 't is good to see what we can learn from the Scripture and enquire if there be any Precept there expresly commanding them to make a King or any Example that they did so whilst they continued obedient to the Word of God or any thing from whence we may reasonably inser they ought to have done it all which if I mistake not will be found directly contrary The only Precept that we find in the Law concerning Kings is that of Deuteron 17. already mentioned and that is not a Command to the People to make but Instructions what manner of King they should make if they desired to have one There was therefore none at all Examples do as little favour our Author's Assertions Moses Joshua and the other Judges had not the name or power of Kings They were not of the Tribe to which the Scepter was promised They did not transmit the Power they had to their Children which in our Adversary's opinion is a Right inseparable from Kings and their Power was not continued by any kind of Succession but created occasionally as need required according to the Vertues discovered in those who were raised by God to deliver the Nation in the time of their distress which being done their Children lay hid among the rest of the People Thus were Ehud Gideon Jephtha and others set up Whosoever will give battel say the Princes and People of Gilead to the Children of Ammon shall be head over the Inheritance of Gilead and finding Jephtha to be such a man as they sought they made him their Chief and all Israel followed them When Othniel had shew'd his Valour in taking Kyriath Sepher and delivering his Brethren from Cushan-Rishathaim he was made Judg When Ehud had killed Eglon when Shamgar and Samson had destroyed great numbers of the Philistins and when Gideon had defeated the Midianites they were fit to be advanced above their Brethren These Dignities were not inherent in their Persons or Families but conferred upon them nor conferred that they might be exalted in Riches and Glory but that they might be Ministers of Good to the People This may justify Plato's opinion that if one man be found incomparably to excel all others in the Vertues that are beneficial to Civil Societies he ought to be advanced above all but I think it will be hard from thence to deduce an Argument in favour of such a Monarchy as is necessarily to descend to the next in Blood whether Man Woman or Child without any consideration of Vertue Age Sex or Ability and that failing it can be of no use to our Author But whatever the dignity of a Hebrew Judg was and howsoever he was raised to that Office it certainly differ'd from that of a King Gideon could not have refused to be a King when the People would have made him so if he had bin a King already or that God from the beginning had appointed that they should have one The Elders and People could not have asked a King of Samuel if he had bin King and he could not without impiety have bin displeased with them for asking for such a one as God had appointed neither would God have said to him They have not rejected thee but they have rejected me that I should not reign over them if he had ordained what they desired They did not indeed reject God with their Mouths They pretended to use the liberty he had given them to make a King but would have such a one as he had forbidden They drew near to him with their Lips but their Hearts were far from him and he seeing their Hypocrisy severely chastised them in granting their ill conceived request and foretold the miseries that should thereupon befal them from which he would not deliver them tho they should cry to him by reason of what they suffered from their King He was their Creature and the mischiefs thereby brought upon them were the fruits of their own labour This is that which our Author calls God's institution of Kings but the Prophet explains the matter much better I gave them Kings in my anger and took them away in my wrath in destroying them God brought desolation upon the people that had sinned in asking for them and following their example in all kind of Wickedness This is all our Author has to boast of but God who acknowledges those works only to be his own which proceed from his goodness and mercy to his People disowns this Israel hath cast off the thing that is good even the Government that he had established the Enemy shall pursue him They have set up Kings but not by me and Princes but I know them not As if he sought to justify the severity of his Judgments brought upon them by the wickedness of their Kings that they not he had ordained Having seen what Government God did not ordain it may be seasonable to examine the nature of the Government which he did ordain and we shall easily find that it consisted of three parts besides the Magistrates of the several Tribes and Cities They had a chief Magistrate who was called Judg or Captain as Joshua Gideon and others a Council of seventy chosen men and the General Assemblies of the People The first was meerly occasional like to the Dictators of Rome and as the Romans in times of danger frequently chose such a Man as was
of France matters there are not much better managed The warlike temper of that people is so worn out by the frauds and cruelties of corrupt Officers that few men list themselves willingly to be Soldiers and when they are engaged or forced they are so little able to endure the miseries to which they are exposed that they daily run away from their Colours tho they know not whither to go and expect no mercy if they are taken The King has in vain attempted to correct this humour by the severity of martial Law but mens minds will not be forced and tho his Troops are perfectly well arm'd cloth'd and exercised they have given many testimonies of little worth When the Prince of Condé had by his own valour and the strength of the King's Guards broken the first line of the Prince of Orange's Army at the battel of Seneff and put the rest into disorder he could not make the second and third line of his own Army to advance and reinforce the first by which means he lost all the fair hopes he had conceived of an entire Victory Not long after the Marechal de Crequi was abandoned by his whole Army near Trier who ran away hardly striking a stroke and left him with sixteen horse to shift for himself When Monsieur de Turenne by the excellency of his Conduct and Valour had gain'd such a Reputation amongst the Soldiers that they thought themselves secure under him he did not suffer such disgraces but he being kill'd they return'd to the usual temper of forced and ill-used Soldiers half the Army was lost in a retreat little differing from a flight and the rest as they themselves confess saved by the bravery of two English Regiments The Prince of Condé was soon after sent to command but he could not with all his courage skill and reputation raise their fallen Spirits nor preserve his Army any other way than by lodging them in a Camp near Schlestadt so fortified by Art and Nature that it could not be forc'd To these we may add some Examples of our own In our late War the Scots Foot whether Friends or Enemies were much inferior to those of the Parliament and their Horse esteemed as nothing Yet in the year 1639 and 1640 the King's Army tho very numerous excellently armed and mounted and in appearance able to conquer many such Kingdoms as Scotland being under the conduct of Courtiers and affected as men usually are towards those that use them ill and seek to destroy them they could never resist a wretched Army commanded by Leven but were shamefully beaten at Newborn and left the Northern Counties to be ravaged by them When Van Tromp set upon Blake in Foleston-Bay the Parliament had not above thirteen Ships against threescore and not a man that had ever seen any other fight at Sea than between a Merchant ship and a Pirat to oppose the best Captain in the world attended with many others in valour and experience not much inferior to him Many other Difficulties were observ'd in the unsetled State Few Ships want of Mony several Factions and some who to advance particular Interests betray'd the Publick But such was the power of Wisdom and Integrity in those that sat at the Helm and their diligence in chusing men only for their Merit was blessed with such success that in two years our Fleets grew to be as famous as our Land Armies the Reputation and Power of our Nation rose to a greater height than when we possessed the better half of France and the Kings of France and Scotland were our Prisoners All the States Kings and Potentates of Europe most respectfully not to say submissively sought our Friendship and Rome was more afraid of Blake and his Fleet than they had bin of the great King of Sweden when he was ready to invade Italy with a hundred thousand men This was the work of those who if our Author say true thought basely of the publick Concernments and believing things might be well enough managed by others minded only their private Affairs These were the effects of the negligence and ignorance of those who being suddenly advanced to Offices were removed before they understood the Duties of them These Diseases which proceed from popular corruption and irregularity were certainly cured by the restitution of that Integrity good Order and Stability that accompany divine Monarchy The justice of the War made against Holland in the year 1665 the probity of the Gentleman who without partiality or bribery chose the most part of the Officers that carried it on the Wisdom Diligence and Valour manifested in the conduct and the Glory with which it was ended justifies all that our Author can say in its commendation If any doubt remains the subtilty of making the King of France desire that the Netherlands might be an accession to his Crown the ingenious ways taken by us to facilitate the conquest of them the Industry of our Ambassadors in diverting the Spaniards from entring into the War till it was too late to recover the Losses sustain'd the honourable Design upon the Smyrna Fleet and our frankness in taking the quarrel upon our selves together with the important Figure we now make in Europe may wholly remove it and in confirmation of our Author's Doctrine shew that Princes do better perform the Offices that require Wisdom Industry and Valour than annual Magistrates and do more seldom err in the choice of Officers than Senates and popular Assemblies SECT XXIX There is no assurance that the Distempers of a State shall be cured by the Wisdom of a Prince BVT says our Author the Virtue and Wisdom of a Prince supplies all Tho he were of a duller understanding by use and experience he must needs excel all Nature Age or Sex are as it seems nothing to the case A Child as soon as he comes to be a King has experience the head of a Fool is filled with Wisdom as soon as a Crown is set upon it and the most vicious do in a moment become virtuous This is more strange than that an Ass being train'd to a Course should outrun the best Arabian Horse or a Hare bred up in an Army become more strong and fierce than a Lion for Fortune dos not only supply all natural defects in Princes and correct their vices but gives them the benefit of use and experience when they have none Some Reasons and Examples might have bin expected to prove this extraordinary Proposition But according to his laudable custom he is pleased to trouble himself with neither and thinks that the impudence of an Assertion is sufficient to make that to pass which is repugnant to experience and common sense as may appear by the following discourse I will not insist upon terms for tho duller understanding signifies nothing in as much as no understanding is dull and a man is said to be dull only because he wants it but presuming he means little understanding I shall so
Diogenes seeing him at Corinth tho in a poor and contemptible condition said he rather deserved to have continued in the misery fears and villanies of his Tyranny than to be suffer'd peaceably to converse with honest men And if such as these are to be called observers of Justice it must be concluded that the Laws of God and of Men are either of no value or contrary to it and that the destruction of Nations is a better work than their preservation No Faith is to be observed Temples may be justly sack'd the best men slain for daring to be better than their Masters and the whole World if it were in the power of one Man rightly torn in pieces and destroy'd His Reasons for this are as good as his Doctrin It is saith he the multitude of people and abundance of riches that are the glory and strength of every Prince the bodies of his Subjects do him service in War and their goods supply his wants Therefore if not out of affection to his people yet out of natural love unto himself every Tyrant desires to preserve the lives and goods of his Subjects I should have thought that Princes tho Tyrants being God's Vicegerents and Fathers of their People would have sought their good tho no advantage had thereby redounded to themselves but it seems no such thing is to be expected from them They consider Nations as Grasiers do their Herds and Flocks according to the profit that can be made of them and if this be so a People has no more security under a Prince than a Herd or Flock under their Master Tho he desire to be a good Husband yet they must be delivered up to the slaughter when he finds a good Market or a better way of improving his Land but they are often foolish riotous prodigal and wantonly destroy their Stock tho to their own prejudice We thought that all Princes and Magistrates had bin set up that under them we might live quietly and peaceably in all godliness and honesty but our Author teaches us that they only seek what they can make of our Bodies and Goods and that they do not live and reign for us but for themselves If this be true they look upon us not as Children but as Beasts nor do us any good for our own sakes or because it is their duty but only that we may be useful to them as Oxen are put into plentiful Pastures that they may be strong for labour or fit for slaughter This is the divine Model of Government that he offers to the World The just Magistrate is the Minister of God for our good but this Absolute Monarch has no other care of us than as our Riches and Multitude may increase his own Glory and Strength We might easily judg what would be the issue of such a Principle when the Being of Nations depending upon his will must also depend upon his opinion whether the Strength Multitude and Riches of a People do conduce to the increase of Glory and Power or not tho Histories were silent in the case for these things speak of themselves The judgment of a single man is not to be relied upon the best and wisest do osten err the foolish and perverse always and our discourse is not of what Moses or Samuel would do but what may come into the fancy of a furious or wicked man who may usurp the supreme Power or a child a woman or a fool that may inherit it Besides the Proposition upon which he builds his Conclusion proves often false for as the Riches Power Number and Courage of our Friends is for our advantage and that of our Enemies threatens us with ruin those Princes only can reasonably believe the strength of their Subjects beneficial to them who govern so as to be assured of their Affection and that their Strength will be employ'd for them But those who know they are or deserve to be hated cannot but think it will be employ'd against them and always seek to diminish that which creates their danger This must certainly befal as many as are lewd foolish negligent imprudent cowardly wicked vicious or any way unworthy the places they obtain for their Reign is a perpetual exercise of the most extreme and ruinous Injustice Every man that follows an honest Interest is prejudic'd Every one who finds the Power that was ordained for his good to be turned to his hurt will be angry and hate him that dos it If the People be of uncorrupted manners this hatred will be universal because every one of them desires that which is just if composed of good and evil the first will always be averse to the evil Government and the others endeavouring to uphold it the safety of the Prince must depend upon the prevalence of either Party If the best prove to be the strongest he must perish and knowing himself to be supported only by the worst he will always destroy as many of his Enemies as he can weaken those that remain enrich his Creatures with their Spoils and Confiscations by fraud and rapine accumulate Treasures to increase the number of his Party and advance them into all places of power and trust that by their assistance he may crush his Adversaries and every man is accounted his Adversary who has either Estate Honor Virtue or Reputation This naturally casts all the Power into the hands of those who have no such dangerous qualities nor any thing to recommend them but an absolute resignation of themselves to do whatever they are commanded These men having neither will nor knowledg to do good as soon as they come to be in power Justice is perverted military Discipline neglected the publick Treasures exhausted new Projects invented to raise more and the Prince's wants daily increasing through their ignorance negligence or deceit there is no end of their devices and tricks to gain supplies To this end swarms of Spies Informers and false Witnesses are sent out to circumvent the richest and most eminent men The Tribunals are fill'd with Court-Parasites of profligate Consciences Fortunes and Reputation that no man may escape who is brought before them If Crimes are wanting the diligence of well-chosen Officers and Prosecutors with the favour of the Judges supply all defects the Law is made a Snare Virtue suppress'd Vice fomented and in a short time Honesty and Knavery Sobriety and Lewdness Virtue and Vice become Badges of the several Factions and every man's conversation and manners shewing to what Party he is addicted the Prince who makes himself head of the worst must favour them to the overthrow of the best which is so streight a way to an universal ruin that no State can prevent it unless that course be interrupted These things consider'd no general Judgment can be made of a Magistrate's Counsels from his Name or Duty He that is just and become grateful to the People by doing good will find his own Honour and Security in increasing their Number
or Promise be pretended the nature and extent of the Obligation can only be known by the contents expressed or the true intention of it If there be a general form of Covenant set and agreed upon to which all Nations must submit it were good to know where it may be found and by whose Authority it is established and then we may examine the sense of it If no such do appear we may rationally look upon those to be Impostors who should go about from thence to derive a right And as that which dos not appear is as if it were not we may justly conclude there is no other or none that can have any effect but such as have bin made by particular Nations with their Princes which can be of no force or obligation to others nor to themselves any farther than according to the true intention of those that made them There is no such thing therefore as a dutiful obedience or duty of being obedient incumbent upon all Nations by virtue of any Covenant nor upon any particular Nation unless it be expressed by a Covenant and whoever pretends to a right of taking our Sons and Daughters Lands or Goods or to go unpunished if he do must show that these things are expressed or intended by the Covenant But tho Nations for the most part owe nothing to Kings till they are Kings and that it can hardly be conceived that any people did ever owe so much to a man as might not be fully repaid by the honor and advantages of such an advancement yet 't is possible that when they are made Kings they may by their good Government lay such Obligations upon their Subjects as ought to be recompensed by obedience and service There is no mortal Creature that deserves so well from mankind as a wife valiant diligent and just King who as a Father cherishes his People as a Shepherd feeds defends and is ready to lay down his life for his flock who is a terror to evil doers and a praise to those that do well This is a glorious Prerogative and he who has it is happy But before this can be adjudged to belong to all it must be proved that all have the Virtues that deserve it and he that exacts the dutiful Obedience that arises from them must prove that they are in him He that dos this need not plead for impunity when he dos injuries for if he do them he is not the man we speak of Not being so he can have no title to the duty by human Institution or Covenant nor by divine Law since as is already proved God has neither established Kings over all Nations by Precept nor recommended them by Example in setting them over his own People He has not therefore done it at all there is no such thing in nature and Nations can owe nothing to Kings merely as Kings but what they owe by the Contract made with them As these Contracts are made voluntarily without any previous obligation 't is evident men make them in consideration of their own good and they can be of force no longer than he with whom they are made perform his part in procuring it and that if he turn the power which was given to him for the publick good to the publick inconvenience and damage he must necessarily lose the benefit he was to receive by it The word think is foolishly and affectedly put in by our Author for those matters are very often so evident that even the weakest know them No great sagacity is requir'd to understand that lewd slothful ignorant false unjust covetous and cruel Princes bring inconveniences and mischiefs upon Nations and many of them are so evidently guilty of some or all these Vices that no man can be mistaken in imputing them and the utmost Calamities may rationally be expected from them unless a Remedy be applied But says he Samuel by telling them what the King would do instructs them what the Subjects must suffer and that 't is right he should go unpunished But by his favour Samuel says no such thing neither is it to be concluded that because a King will do wickedly he must be suffer'd any more than a private man who should take the same Resolution But he told them that when they should cry to the Lord by reason of their King he would not hear them This was as much as to say their ruin was unavoidable and that having put the power into the hands of those who instead of protecting would oppress them and thereby having provoked God against them so as he would not hearken to their cries they could have no relief But this was no security to the Authors of their Calamity The Houses of Jeroboam Baasha and Omri escaped not unpunished tho the people did not thereby recover their Liberty The Kings had introduced a Corruption that was inconsistent with it But they who could not settle upon a right Foundation to prevent future mischiefs could avenge such as they had suffered upon the heads of those who had caused them and frequently did it most severely The like besel the Romans when by the violence of Tyranny all good Order was overthrown good Discipline extinguished and the People corrupted Ill Princes could be cut in pieces and mischiefs might be revenged tho not prevented But 't is not so every where nor at all times and nothing is more irrational than for one or a few Examples to conclude a general necessity of future Events They alter according to Circumstances and as some Nations by destroying Tyrants could not destroy Tyranny others in removing the Tyrant have cut up Tyranny by the roots This variety has bin seen in the same Nation at different times The Romans recovered their Liberty by expelling Tarquin but remained Slaves notwithstanding the slaughter of Cesar. Whilst the Body of the People was uncorrupted they cured the Evil wrought by the person in taking him away It was no hard matter to take the Regal Power that by one man had bin enjoy'd for life and to place it in the hands of two annual Magistrates whilst the Nobility and People were according to the condition of that Age strong and ready to maintain it But when the mischief had taken deeper root when the best part of the people had perished in the Civil Wars when all their eminent men had fallen in battel or by the Proscriptions when their Discipline was lost and Virtue abolished the poor remains of the distressed people were brought under the power of a mercenary Soldiery and found no relief When they kill'd one Tyrant they osten made room for a worse It availed them nothing to cut off a rotten Branch whilst the accursed Root remained and sent forth new Sprouts of the same nature to their destruction Other generous Nations have bin subdued beyond a possibility of recovery and those that are naturally base slide into the like misery without the impulse of an exterior Power They are Slaves
to them On the other hand the poverty and simplicity of the Spartan Kings was no less safe and profitable to the People than truly glorious to them Agesilaus denied that Artaxerxes was greater than he unless he were more temperate or more valiant and he made good his words so well that without any other assistance than what his Wisdom and Valour did afford he struck such a terror into that great rich powerful and absolute Monarch that he did not think himself safe in Babylon or Ecbatane till the poor Spartan was by a Captain of as great valour and greater poverty obliged to return from Asia to the defence of his own Country This was not peculiar to the severe Laconic Discipline When the Roman Kings were expelled a few Carts were prepared to transport their goods and their Lands which were consecrated to Mars and now go under the name of Campus Martius hardly contain ten Acres of ground Nay the Kings of Israel who led such vast Armies into the field that is were followed by all the people who were able to bear Arms seem to have possessed little Ahab one of the most powerful was so fond of Naboth's Vineyard which being the Inheritance of his Fathers according to their equal division of Lands could not be above two Acres that he grew sick when it was refused But if an allowance be to be made to every King it must be either according to a universal Rule or Standard or must depend upon the Judgment of Nations If the first they who have it may do well to produce it if the other every Nation proceeding according to the measure of their own discretion is free from blame It may also be worth observation whether the Revenue given to a King be in such manner committed to his care that he is obliged to employ it for the publick Service without the power of Alienation or whether it be granted as a Propriety to be spent as he thinks fit When some of the antient Jews and Christians scrupled the paiment of Tribute to the Emperors the reasons alledged to perswade them to a compliance seem to be grounded upon a supposition of the first for said they the defence of the State lies upon them which cannot be perform'd without Armies and Garisons these cannot be maintained without pay nor mony raised to pay them without Tributes and Customs This carries a face of reason with it especially in those Countries which are perpetually or frequently subject to Invasions but this will not content our Author He speaks of employing the revenue in keeping his House and looks upon it as a propriety to be spent as he thinks convenient which is no less than to cast it into a Pit of which no man ever knew the bottom That which is given one day is squandred away the next The people is always oppress'd with Impositions to foment the Vices of the Court These daily increasing they grow insatiable and the miserable Nations are compelled to hard labour in order to satiate those Lusts that tend to their own ruin It may be consider'd that the virtuous Pagans by the light of Nature discovered the truth of this Poverty grew odious in Rome when great men by desiring Riches put a value upon them and introduced that pomp and luxury which could not be born by men of small Fortunes From thence all furies and mischiefs seem'd to break loose The base slavish and so often subdued Asia by the basest of men revenged the defeats they had received from the bravest and by infusing into them a delight in pomp and luxury in a short time rendred the strongest and bravest of Nations the weakest and basest I wish our own experience did not too plainly manifest that these Evils were never more prevalent than in our days when the luxury majestick pomp and absolute power of a neighbouring King must be supported by an abundance of Riches torn out of the bowels of his Subjects which renders them in the best Country of the World and at a time when the Crown most flourishes the poorest and most miserable of all the Nations under the Sun We too well know who are most apt to learn from them and by what means and steps they endeavour to lead us into the like misery But the Bird is safe when the Snare is discover'd and if we are not abandoned by God to destruction we shall never be brought to consent to the settling of that Pomp which is against the practice of all virtuous people and has brought all the Nations that have bin taken with it into the ruin that is intended for us S E C T. VII When the Israelites asked for such a King as the Nations about them had they asked for a Tyrant tho they did not call him so NOW that Saul was no Tyrant says our Author note that the people asked a King as all Nations had God answers and bids Samuel to hear the voice of the People in all things which they spake and appoint them a King They did not ask a Tyrant and to give them a Tyrant when they asked a King had not bin to hear their voice in all things but rather when they asked an Egg to have given them a Scorpion unless we will say that all Nations had Tyrants But before he drew such a Conclusion he should have observed that God did not give them a Scorpion when they asked an Egg but told them that was a Scorpion which they called an Egg They would have a King to judg them to go out before them and to fight their Battels but God in effect told them he would overthrow all Justice and turn the Power that was given him to the ruin of them and their Posterity But since they would have it so he commanded Samuel to hearken to their Voice and for the punishment of their sin and folly to give them such a King as they asked that is one who would turn to his own profit and their misery the Power with which he should be entrusted and this truly denominates a Tyrant Aristotle makes no other distinction between a King and a Tyrant than that the King governs for the good of the People the Tyrant for his own pleasure or profit and they who asked such a one asked a Tyrant tho they called him a King This is all could be done in their Language for as they who are skilled in the Oriental Tongues assure me there is no name for a Tyrant in any of them or any other way of expressing the thing than by circumlocution and adding proud insolent lustful cruel violent or the like Epithets to the word Lord or King They did in effect ask a Tyrant They would not have such a King as God had ordain'd but such a one as the Nations had Not that all Nations had Tyrants but those who were round about them of whom they had knowledg and which in their manner of speaking went under the name
ever were committed may pass for laudable and innocent But if Saul were not to be blamed for killing the Priests why was David blamed for the death of Uriah Why were the Dogs to lick the blood of Ahab and Jezebel if they did nothing more than Kings might do without blame Now if the slaughter of one man was so severely avenged upon the Authors and their Families none but such as Filmer can think that of so many innocent men with their Wives and Children could escape unreproved or unpunished But the whole series of the History of Saul shewing evidently that his Life and Reign were full of the most violent cruelty and madness we are to seek no other reason for the ruin threatned and brought upon him and his Family And as those Princes who are most barbarously savage against their own people are usually most gentle to the Enemies of their Country he could not give a more certain testimony of his hatred to those he ought to have protected than by preserving those Nations who were their most irreconcileable Enemies This is proved by reason as well as by experience for every man knows he cannot bear the hatred of all mankind Such as know they have Enemies abroad endeavour to get Friends at home Those who command powerful Nations and are beloved by them fear not to offend Strangers But if they have rendred their own people Enemies to them they cannot hope for help in a time of distress nor so much as a place of retreat or refuge unless from strangers nor from them unless they deserve it by favouring them to the prejudice of their own Country As no man can serve two Masters no man can pursue two contrary Interests Moses Joshua Gideon and Samuel were severe to the Amorites Midianites and Cananites but mild and gentle to the Hebrews Saul who was cruel to the Hebrews spared the Amalekites whose preservation was their destruction and whilst he destroyed those he should have saved and saved those that by a general and particular command of God he should have destroyed he lost his ill-govern'd Kingdom and left an example to posterity of the end that may be expected from pride folly and tyranny The matter would not be much alter'd if I should confess that in the time of Saul all Nations were governed by Tyrants tho it is not true for Greece did then flourish in Liberty and we have reason to believe that other Nations did so also for tho they might not think of a good Government at the first nothing can oblige men to continue under one that is bad when they discover the evils of it and know how to mend it They who trusted men that appeared to have great Virtues with such a power as might easily be turned into Tyranny might justly retract limit or abolish it when they found it to be abused And tho no condition had bin reserved the publick Good which is the end of all Government had bin sufficient to abrogate all that should tend to the contrary As the malice of Men and their Inventions to do mischief increase daily all would soon be brought under the power of the worst if care were not taken and opportunities embraced to find new ways of preventing it He that should make War at this day as the best Commanders did two hundred years past would be beaten by the meanest Souldier The Places then accounted impregnable are now slighted as indefensible and if the Arts of defending were not improved as well as those of affaulting none would be able to hold out a day Men were sent into the World rude and ignorant and if they might not have used their natural Faculties to find out that which is good for themselves all must have bin condemn'd to continue in the ignorance of our first Fathers and to make no use of their understanding to the ends for which it was given The bestial Barbarity in which many Nations especially of Africa America and Asia do now live shews what human Nature is if it be not improved by art and discipline and if the first errors committed through ignorance might not be corrected all would be obliged to continue in them and for any thing I know we must return to the Religion Manners and Policy that were found in our Country at Cesar's landing To affirm this is no less than to destroy all that is commendable in the world and to render the understanding given to men utterly useless But if it be lawful for us by the use of that understanding to build Houses Ships and Forts better than our Ancestors to make such Arms as are most fit for our defence and to invent Printing with an infinite number of other Arts beneficial to mankind why have we not the same right in matters of Government upon which all others do almost absolutely depend If men are not obliged to live in Caves and hollow Trees to eat Acorns and to go naked why should they be for ever obliged to continue under the same form of Government that their Ancestors happened to set up in the time of their ignorance Or if they were not so ignorant to set up one that was not good enough for the age in which they lived why it should not be altered when tricks are found out to turn that to the prejudice of Nations which was erected for their good From whence should malice and wickedness gain a privilege of putting new Inventions to do mischief every day into practice and who is it that so far protects them as to forbid good and innocent men to find new ways also of defending themselves from it If there be any that do this they must be such as live in the same principle who whilst they pretend to exercise Justice provide only for the indemnity of their own Crimes and the advancement of unjust designs They would have a right of attacking us with all the advantages of the Arms now in use and the Arts which by the practice of so many ages have bin wonderfully refined whilst we should be obliged to employ no others in our just defence than such as were known to our naked Ancestors when Cesar invaded them or to the Indians when they fell under the dominion of the Spaniards This would be a compendious way of placing uncontrol'd Iniquity in all the Kingdoms of the World and to overthrow all that deserves the name of Good by the introduction of such accursed Maxims But if no man dares to acknowledg any such except those whose acknowledgment is a discredit we ought not to suffer them to be obliquely obtruded upon us nor to think that God has so far abandoned us into the hands of our Enemies as not to leave us the liberty of using the same Arms in our defence as they do to offend and injure us We shall be told that Prayers and Tears were the only Arms of the first Christians and that Christ commanded his Disciples to pray
continue in any If the Power be not conferred upon them they have it not and if they have it not their want of leisure to do Justice cannot have bin the cause for which Laws are made and they cannot be the signification of their Will but are that to which the Prince ows Obedience as well as the meanest Subject This is that which Bracton calls esse sub lege and says that Rex in regno superiores habet Deum Legem Fortescue says The Kings of England cannot change the Laws and indeed they are so far from having any such Power that the Judges swear to have no regard to the King's Letters or Commands but if they receive any to proceed according to Law as if they had not bin And the breach of this Oath dos not only bring a blemish upon their Reputation but exposes them to capital Punishments as many of them have found 'T is not therefore the King that makes the Law but the Law that makes the King It gives the rule for Succession making Kingdoms sometimes Hereditary and sometimes Elective and more often than either simply Hereditary under condition In some places Males only are capable of inheriting in others Females are admitted Where the Monarchy is regular as in Germany England c. the Kings can neither make nor change Laws They are under the Law and the Law is not under them their Letters or Commands are not to be regarded In the administration of Justice the question is not what pleases them but what the Law declares to be right which must have its course whether the King be busy or at leisure whether he will or not The King who never dies is always present in the supreme Courts and neither knows nor regards the pleasure of the man that wears the Crown But lest he by his Riches and Power might have some influence upon judicial Proceedings the great Charter that recapitulates and acknowledges our antient inherent Liberties obliges him to swear that he will neither sell delay nor deny Justice to any man according to the Laws of the Land which were ridiculous and absurd if those Laws were only the signification of his Pleasure or any way depended upon his Will This Charter having bin confirmed by more than thirty Parliaments all succeeding Kings are under the obligation of the same Oath or must renounce the benefit they receive from our Laws which if they do they will be found to be equal to every one of us Our Author according to his custom having laid down a false proposition gos about to justify it by false examples as those of Draco Solon the Decemviri and Moses of whom no one had the Power he attributes to them and it were nothing to us if they had The Athenians and Romans as was said before were so far from resigning the absolute Power without appeal to themselves that nothing done by their Magistrates was of any force till it was enacted by the People And the power given to the Decemviri sine provocatione was only in private cases there being no superior Magistrate then in being to whom Appeals could be made They were vested with the same Power the Kings and Dictators enjoy'd from whom there lay no Appeal but to the People and always to them as appears by the case of Horatius in the time of Tullus Hostilius that of Marcus Fabius when Papirius Cursor was Dictator and of Nenius the Tribun during that of Q. Fabius Maximus all which I have cited already and reser to them There was therefore a reservation of the supreme Power in the People notwithstanding the creation of Magistrates without Appeal and as it was quietly exercised in making Strangers or whom they pleased Kings restraining the power of Dictators to six months and that of the Decemviri to two years when the last did contrary to Law endeavour by force to continue their Power the People did by force destroy it and them The case of Moses is yet more clear he was the most humble and gentle of all men he never raised his heart above his brethren and commanded Kings to live in the same modesty he never desired the People should depend upon his will In giving Laws to them he fulfill'd the will of God not his own and those Laws were not the signification of his will but of the will of God They were the production of God's Wisdom and Goodness not the invention of Man given to purify the People not to advance the glory of their Leader He was not proud and insolent nor pleas'd with that ostentation of Pomp to which fools give the name of Majesty and whoever so far exalts the power of a man to make Nations depend upon his pleasure dos not only lay a burden upon him which neither Moses nor any other could ever bear and every wise man will always abhor but with an impious fury endeavours to set up a Government contrary to the Laws of God presumes to accuse him of want of wisdom or goodness to his own People and to correct his Errors which is a work fit to be undertaken by such as our Author From hence as upon a solid foundation he proceeds and making use of King James's words infers that Kings are above the Laws because he so teaches us But he might have remembred that having affirmed the People could not judg of the disputes that might happen between them and Kings because they must not be judges in their own case 't is absurd to make a King judg of a case so nearly concerning himself in the decision of which his own Passions and Interests may probably lead him into errors And if it be pretended that I do the same in giving the judgment of those matters to the People the case is utterly different both in the nature and consequences The King's judgment is merely for himself and if that were to take place all the Passions and Vices that have most power upon men would concur to corrupt it He that is set up for the publick good can have no contest with the whole People whose good he is to procure unless he deflect from the end of his Institution and set up an interest of his own in opposition to it This is in its nature the highest of all delinquencies and if such a one may be judg of his own crimes he is not only sure to avoid punishment but to obtain all that he sought by them and the worse he is the more violent will his desires be to get all the power into his hands that he may gratify his lusts and execute his pernicious designs On the other side in a popular Assembly no man judges for himself otherwise than as his good is comprehended in that of the publick Nothing hurts him but what is prejudicial to the Commonwealth such amongst them as may have received private Injuries are so far only considered by others as their Sufferings may have influence upon the
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
says governed by God rather than by men whilst those who subjected themselves to the will of a man were governed by a beast This being so our Author's next clause That tho a King do frame all his Actions to be according unto Law yet he is not bound thereunto but as his good will and for good example or so far forth as the general Law for the safety of the Commonwealth doth naturally bind him is wholly impertinent For if the King who governs not according to Law degenerates into a Tyrant he is obliged to frame his actions according to Law or not to be a King for a Tyrant is none but as contrary to him as the worst of men is to the best But if these obligations were untied we may easily guess what security our Author's word can be to us that the King of his own good will and for a good example will frame his actions according to the Laws when experience instructs us that notwithstanding the strictest Laws and most exquisite Constitutions that men of the best abilities in the world could ever invent to restrain the irregular appetites of those in power with the dreadful examples of vengeance taken against such as would not be restrained they have frequently broken out and the most powerful have for the most part no otherwise distinguished themselves from the rest of men than by the enormity of their vices and being the most forward in leading others to all manner of crimes by their example SECT XVI The observation of the Laws of Nature is absurdly expected from Tyrants who set themselves up against all Laws and he that subjects Kings to no other Law than what is common to Tyrants destroys their being OUR Authors last clause acknowledging Kings to be bound by a general Law to provide for the safety of the People would be sufficient for my purpose if it were sincere for municipal Laws do only shew how that should be performed and if the King by departing from that rule degenerates as he says into a Tyrant 't is easily determined what ought then to be done by the People But his whole book being a heap of contradictions and frauds we can rely upon nothing that he says And his following words which under the same Law comprehend both Kings and Tyrants shew that he intends Kings should be no otherwise obliged than Tyrants which is not at all By this means says he are all Kings even Tyrants and Conquerors bound to preserve the Lands Goods Liberties and Lives of all their Subjects not by any municipal Law of the Land so much as by the natural Law of a Father which obligeth them to ratify the Acts of their Forefathers and Predecessors in things necessary for the publick good of their Subjects If he be therefore in the right Tyrants and Conquerors are Kings and Fathers The words that have bin always thought to comprehend the most irreconcileable contrariety the one expressing the most tender love and care evidently testified by the greatest obligations conferred upon those who are under it the other the utmost of all injuries that can be offer'd to men signify the same thing There is no difference between a Magistrate who is what he is by Law and a publick Enemy who by force or fraud sets himself up against all Law And what he said before that Kings degenerated into Tyrants signifies nothing for Tyrants also are Kings His next words are no less incomprehensible for neither King nor Tyrant can be obliged to preserve the Lands Goods and Liberties of their Subjects if they have none But as Liberty consists only in being subject to no man's will and nothing denotes a Slave but a dependence upon the will of another if there be no other Law in a Kingdom than the will of a Prince there is no such thing as Liberty Property also is an appendage to Liberty and 't is as impossible for a man to have a right to Lands or Goods if he has no Liberty and enjoys his Life only at the pleasure of another as it is to enjoy either when he is deprived of them He therefore who says Kings and Tyrants are bound to preserve their Subjects Lands Liberties Goods and Lives and yet lays for a foundation that Laws are no more than the significations of their Pleasure seeks to delude the world with words which signify nothing The vanity of these whimseys will farther appear if it be considered that as Kings are Kings by Law and Tyrants are Tyrants by overthrowing the Law they are most absurdly joined together and 't is not more ridiculous to set him above the Law who is what he is by the Law than to expect the observation of the Laws that enjoin the preservation of the Lands Liberties Goods and Lives of the People from one who by fraud or violence makes himself master of all that he may be restrain'd by no Law and is what he is by subverting all Law Besides if the safety of the People be the supreme Law and this safety extend to and consist in the preservation of their Liberties Goods Lands and Lives that Law must necessarily be the root and beginning as well as the end and limit of all magistratical Power and all Laws must be subservient and subordinate to it The question will not then be what pleases the King but what is good for the People not what conduces to his profit or glory but what best secures the Liberties he is bound to preserve he dos not therefore reign for himself but for the People he is not the Master but the Servant of the Commonwealth and the utmost extent of his Prerogative is to be able to do more good than any private man If this be his work and duty 't is easily seen whether he is to judg of his own performance or they by whom and for whom he reigns and whether in order to this he be to give Laws or to receive them 'T is ordinarily said in France Il faut que chacun soit servi a sa mode Every mans business must be done according to his own mind and if this be true in particular Persons 't is more plainly so in whole Nations Many eyes see more than one the collected wisdom of a People much surpasses that of a single Person and tho he should truly seek that which is best 't is not probable he would so easily find it as the body of a Nation or the principal men chosen to represent the whole This may be said with justice of the best and wisest Princes that ever were but another Language is to be used when we speak of those who may succeed and who very often through the defects of Age Person or Sex are neither fit to judg of other mens affairs nor of their own and are so far from being capable of the highest Concernments relating to the safety of whole Nations that the most trivial cannot reasonably be referred to them There are few men
lose by it and the Lord Chancellor Egerton told a Gentleman who desired relief against his own Deed upon an Allegation that he knew not what he did when he signed it that he did not sit to relieve fools But tho voluntary Promises or Oaths when to use the Lawyers language there is not a valuable consideration were of no obligation or that men brought by force fear or error into such Contracts as are grievous in the performance might be relieved this would not at all reach the cases of Princes in the Contracts made between them and their Subjects and confirmed by their Oaths there being no colour of force or fraud fear or error for them to alledg nor any thing to be pretended that can be grievous to perform otherwise than as it may be grievous to an ill man not to do the mischiefs he had conceived Nations according to their own will frame the Laws by which they resolve to be governed and if they do it not wisely the damage is only to themselves But 't is hard to find an example of any People that did by force oblige a man to take upon him the Government of them Gideon was indeed much pressed by the Israelites to be their King and the Army of Germanicus in a Mutiny more fiercely urged him to be Emperor but both desisted when their Offers were refused If our Kings have bin more modest and our Ancestors more pertinacious in compelling them to accept the Crowns they offer'd I shall upon proof of the matter change my opinion But till that do appear I may be pardoned if I think there was no such thing William the Norman was not by force brought into England but came voluntarily and desired to be King The Nobility Clergy and Commons proposed the Conditions upon which they would receive him These conditions were to govern according to their antient Laws especially those that had bin granted or rather collected in the time of the famous King Edward Here was neither force nor fraud if he had disliked the terms he might have retired as freely as he came But he did like them and tho he was not perhaps so modest to say with the brave Saxon King Offa Ad Libertatis vestrae tuitionem non meis meritis sed sola liberalitate vestra unanimiter me convocastis he accepted the Crown upon the conditions offer'd and swore upon the Evangelists to observe them Not much valuing this he pretended to govern according to his own will but finding the People would not endure it he renewed his Oath upon the same Evangelists and the Reliques of S. Alban which he needed not to have done but might have departed to his Dutchy of Normandy if he had not lik'd the conditions or thought not fit to observe them 'T is probable he examined the contents of Edward's Laws before he swore to them and could not imagine that a free Nation which never had any other Kings than such as had bin chosen by themselves for the preservation of their Liberty and from whose liberality the best of their Kings acknowledged the Crowns they wore did intend to give up their Persons Liberties and Estates to him who was a stranger most especially when they would not receive him till he had sworn to the same Laws by which the others had reigned of which one was as appears by the act of the Conventus Pananglicus that Reges à Sacerdotibus senioribus Populi eligantur The Kings should be elected by the Clergy and Elders of the People By these means he was advanced to the Crown to which he could have no title unless they had the right of conferring it upon him Here was therefore no force deceit or error and whatsoever equity there might be to relieve one that had bin forced frighted or circumvented it was nothing to this case We do not find that William the 2d or Henry were forced to be Kings no Sword was put to their Throats and for any thing we know the English Nation was not then so contemptible but men might have bin found in the world who would willingly have accepted the Crown and even their elder Brother Robert would not have refused but the Nobility and Commons trusting to their Oaths and Promises thought fit to prefer them before him and when he endeavoured to impose himself upon the Nation by force they so severely punished him that no better proof can be required to shew that they were accustomed to have no other Kings than such as they approved And this was one of the Customs that all their Kings swore to maintain it being as antient just and well approved as any other Having already proved that all the Kings we have had since that time have come in upon the same title that the Saxon Laws to which all have sworn continue to be of force amongst us and that the words pronounced four times on the four sides of the Scaffold by the Archbishop Will ye have this man to reign do testify it I may spare the pains of a repetition and justly conclude That if there was neither force nor fraud fear nor error to be pretended by the first there could be none in those that followed But the observation of this Oath may be grievous If I received money the last year upon Bond Promise or sale of a Mannor or Farm can it be thought grievous to me to be compelled to repay or to make over the Land according to my agreement Or if I did not seal the Bond till I had the money must not I perform the condition or at the least restore what I had received If it be grievous to any King to preserve the Liberties Lives and Estates of his Subjects and to govern according to their Laws let him resign the Crown and the People to whom the Oath was made will probably release him Others may possibly be found who will not think it grievous or if none will accept a Crown unless they may do what they please the People must bear the misfortune of being obliged to govern themselves or to institute some other sort of Magistracy that will be satisfied with a less exorbitant Power Perhaps they may succeed as well as some others have done who without being brought to that necessity have voluntarily cast themselves into the misery of living without the majestick splendor of a Monarch or if that fail they may as their last refuge surrender up themselves to Slavery When that is done we will acknowledg that whatsoever we have is derived from the favour of our Master But no such thing yet appearing amongst us we may be pardoned if we think we are Free-men governed by our own Laws and that no man has a power over us which is not given and regulated by them nor that any thing but a new Law made by our selves can exempt our Kings from the obligation of performing their Oaths taken to govern according to the old in the true
Kings of Spain France and Sweden so well to understand the meaning of it as to decide extraordinary cases The wisdom of Nations has provided more assured helps and none could have bin so brutish and negligent of the publick Concernments to suffer the Succession to fall to women children c. if they had not reserved a power in themselves to prefer others before the nearest in blood if reason require and prescribed such rules as might preserve the publick from ruin notwithstanding their infirmities and vices These helps provided by our Laws are principally by grand and petit Juries who are not only Judges of matters of fact as whether a man be kill'd but whether he be kill'd criminally These men are upon their Oaths and may be indicted of Perjury if they prevaricate The Judges are present not only to be a check upon them but to explain such points of the Law as may seem difficult And tho these Judges may be said in some sense to be chosen by the King he is not understood to do it otherwise than by the advice of his Council who cannot perform their duty unless they propose such as in their consciences they think most worthy of the Office and most capable of performing the duty rightly nor he accomplish the Oath of his Coronation unless he admit those who upon deliberation seem to be the best The Judges being thus chosen are so far from depending upon the will of the King that they swear faithfully to serve the People as well as the King and to do justice to every man according to the Law of the Land notwithstanding any Writs Letters or Commands received from him and in default thereof they are to forfeit their bodies lands and goods as in cases of Treason These Laws have bin so often and so severely executed that it concerns all Judges well to consider them and the Cases of Tresilian Empson Dudley and others shew that neither the King 's preceding command nor subsequent pardon could preserve them from the punishment they deserved All men knew that what they did was agreeable to the King's pleasure for Tresilian advanced the Prerogative of Edward the 2d and Empson brought great Treasures into the Coffers of Henry the 7th Nevertheless they were charged with Treason for subverting the Laws of the Land and executed as Traitors Tho England ought never to forget the happy Reign of Q. Elizabeth yet it must be acknowledged that she as well as others had her failings She was full of love to the People just in her nature sincere in her intentions but could not so perfectly discover the snares that were laid for her or resist the importunity of the Persons she most trusted as not sometimes to be brought to attempt things against Law She and her Counsellors pressed the Judges very hardly to obey the Patent under her Great Seal in the case of Cavendish but they answered That both she and they had taken an Oath to keep the Law and if they should obey her commands the Law would not warrant them c. And besides the offence against God their Country and the Commonwealth they alledged the example of Empson and Dudley whereby they said they were deterred from obeying her illegal Commands They who had sworn to keep the Law notwithstanding the King's Writs knew that the Law depended not upon his will and the same Oath that obliged them not to regard any command they should receive from him shewed that they were not to expect indemnity by it and not only that the King had neither the power of making altering mitigating or interpreting the Law but that he was not at all to be heard in general or particular matters otherwise than as he speaks in the common course of Justice by the Courts legally established which say the same thing whether he be young or old ignorant or wise wicked or good and nothing dos better evidence the wisdom and care of our Ancestors in framing the Laws and Government we live under than that the People did not suffer extremities by the vices or infirmities of Kings till an Age more full of malice than those in which they lived had found tricks to pervert the rule and frustrate their honest intentions It was not safe for the Kings to violate their Oaths by an undue interposition of their Authority but the Ministers who served them in those violations have seldom escaped punishment This is to be understood when the deviations from Justice are extreme and mischievous for something must always be allow'd to human frailty The best have their defects and none could stand if a too exact scrutiny were made of all their actions Edward the third about the twentieth year of his Reign acknowledged his own in Parliament and as well for the ease of his Conscience as the satisfaction of his People promoted an Act Commanding all Judges to do Justice notwithstanding any Writs Letters or Commands from himself and forbidding those that belonged to the King Queen and Prince to intermeddle in those matters But if the best and wisest of our Princes in the strength and maturity of their years had their failings and every act proceeding from them that tended to the interruption of Justice was a failing how can it be said that the King in his personal capacity directly or indirectly may enter into the discussion of these matters much less to determine them according to his will But says our Author the Law is no better than a Tyrant general Pardons at the Coronation and in Parliament are but the bounty of the Prerogative c. There may be hard cases and citing some perverted pieces from Aristotle's Ethicks and Politicsk adds That when something falls out besides the general rule then it is fit that what the Lawmaker hath omitted or where he hath erred by speaking generally it should be corrected and supplied as if the Lawmaker were present that ordained it The Governor whether he be one man or more ought to be Lord of these things whereof it was impossible that the Law should speak exactly These things are in part true but our Author makes use of them as the Devil dos of Scripture to subvert the truth There may be something of rigour in the Law that in some cases may be mitigated and the Law it self in relation to England dos so far acknowledg it as to refer much to the consciences of Juries and those who are appointed to assist them and the most difficult Cases are referred to the Parliament as the only judges that are able to determine them Thus the Statute of the 35 Edw. 3d enumerating the crimes then declared to be Treason leaves to suture Parliaments to judg what other facts equivalent to them may deserve the same punishment and 't is a general rule in the Law which the Judges are sworn to observe that difficult Cases should be reserved till the Parliament meet who are only able to decide them and
retained the name of a Senate was made up chiefly of those who had bin his Ministers in bringing the most miserable slavery upon their own Country The Roman Liberty and that bravery of spirit by which it had bin maintained was not only abolished but almost forgotten All consideration of Law and Right was trampled under foot and none could dispute with him who by the power of the sword had seiz'd the Authority both of the Senate and People Nothing was so extravagant that might not be extorted by the insolent violence of a Conqueror who had thirty mercenary Legions to execute his Commands The uncorrupted part of the People that had escaped the sword of Julius had either perished with Hirtius and Pansa Brutus and Cassius or bin destroy'd by the detestable Triumvirate Those that remain'd could lose nothing by a verbal resignation of their Liberty which they had neither strength nor courage to defend The Magistracies were possess'd by the Creatures of the Tyrant and the People was composed of such as were either born under slavery and accustomed to obey or remain'd under the terror of those arms that had consumed the Assertors of their Liberty Our Author standing in need of some Roman Example was obliged to seek it in an age when the Laws were subverted Virtue extinguished Injustice placed in the Throne and such as would not be of the same spirit exposed to the utmost cruelty This was the time when the Sovereign Majesty shined in glory and they who had raised it above the Law made it also the object of their Religion by adoring the Statues of their Oppressor The corruption of this Court spread it self over the best part of the world and reduced the Empire to that irrecoverable weakness in which it languished and perish'd This is the state of things that pleases Filmer and those that are like him who for the introduction of the same among us recommend such an elevation of the Sovereign Majesty as is most contrary to the Laws of God and Men abhorred by all generous Nations and most especially by our Ancestors who thought nothing too dear to be hazarded in the defence of themselves and us from it SECT XXV The Regal Power was not the first in this Nation nor necessarily to be continued tho it had bin the first TRUTH being uniform in it self those who desire to propagate it for the good of mankind lay the foundations of their reasonings in such Principles as are either evident to common sense or easily proved but Cheats and Impostors delighting in obscurity suppose things that are dubious or false and think to build one falshood upon another and our Author can find no better way to perswade us that all our Privileges and Laws are from the King than by saying That the first power was the Kingly Power which was both in this and all other Nations in the world long before any Laws or any other kind of Government was thought of from whence we must necessarily infer that the common Law or common Customs of this Land were originally the Laws and Commands of the King But denying both these points I affirm 1. First that there was a power to make Kings before there was any King 2. Tho Kings had bin the first created Magistrates in all places as perhaps they were in some it dos not follow that they must continue for ever or that Laws are from them To the first I think no man will deny that there was a People at Babylon before Nimrod was King of that place This People had a Power for no number of men can be without it Nay this People had a power of making Nimrod King or he could never have bin King He could not be King by succession for the Scripture shews him to have bin the first He was not King by the right of Father for he was not their Father Chush Cham with his elder Brothers and Father Noah being still living and which is worst of all were not Kings for if they who lived in Nimrod's time or before him neither were Kings nor had Kings he that ought to have bin King over all by the right of nature if there had bin any such thing in nature was not King Those who immediately succeeded him and must have inherited his right if he had any did not inherit or pretend to it and therefore he that shall now claim a right from nature as Father of a People must ground it upon something more certain than Noah's right of reigning over his Children or it can have no strength in it Moreover the Nations who in and before the time of Nimrod had no Kings had Power or else they could have performed no Act nor constituted any other magistrate to this day which is absurd There was therefore a power in Nations before there were Kings or there could never have bin any and Nimrod could never have bin King if the People of Babylon had not made him King which they could not have done if they had not had a power of making him so 'T is ridiculous to say he made himself King for tho he might be strong and valiant he could not be stronger than a multitude of men That which sorces must be stronger than that which is forced and if it be true according to the antient saying that Hercules himself is not sufficient to encounter two 't is sure more impossible for one man to force a multitude for that must be stronger than he If he came in by perswasion they who were perswaded were perswaded to consent that he should be King That Consent therefore made him King But Qui dat esse dat modum esse They who made him King made him such a King as best pleased themselves He had therefore nothing but what was given his greatness and power must be from the multitude who gave it and their Laws and Liberties could not be from him but their Liberties were naturally inherent in themselves and their Laws were the product of them There was a People that made Romulus King He did not make or beget that People nor for any thing we know one man of them He could not come in by inheritance for he was a Bastard the Son of an unknown man and when he died the right that had bin conferred upon him reverted to the People who according to that right chose Numa Hostilius Martius Tarquinius Priscus and Servius all Strangers and without any other right than what was bestow'd upon them and Tarquinius Superbus who invaded the Throne without the command of the People was ejected and the Government of Kings abolisht by the same power that had created it We know not certainly by what Law Moses and the Judges created by the advice of Jethro governed the Israelites but may probably conjecture it to have bin by that Law which God had written in the hearts of mankind and the People submitted to the judgment of good and wise men tho
his Son gave them occasion to resume If this was commendable in them it must be so in other Nations If the Germans might preserve their Liberty as well as the Parthians submit themselves to absolute Monarchy 't is as lawful for the descendents of those Germans to continue in it as for the Eastern Nations to be slaves If one Nation may justly chuse the Government that seems best to them and continue or alter it according to the changes of times and things the same right must belong to others The great variety of Laws that are or have bin in the world proceeds from this and nothing can better shew the wisdom and virtue or the vices and folly of Nations than the use they make of this right they have bin glorious or infamous powerful or despicable happy or miserable as they have well or ill executed it If it be said that the Law given by God to the Hebrews proceeding from his wisdom and goodness must needs be perfect and obligatory to all Nations I answer that there is a simple and a relative perfection the first is only in God the other in the things he has created He saw that they were good which can signify no more than that they were good in their kind and suted to the end for which he designed them For if the perfection were absolute there could be no difference between an Angel and a Worm and nothing could be subject to change or death for that is imperfection This relative perfection is seen also by his Law given to mankind in the persons of Adam and Noah It was good in the kind fit for those times but could never have bin enlarged or altered if the perfection had bin simple and no better evidence can be given to shew that it was not so than that God did asterwards give one much more full and explicit to his People This Law also was peculiarly applicable to that People and season for if it had bin otherwise the Apostles would have obliged Christians to the intire observation of it as well as to abstain from idolatry fornication and blood But if all this be not so then their judicial Law and the form of their Commonwealth must be received by all no human Law can be of any value we are all Brethren no man has a prerogative above another Lands must be equally divided amongst all Inheritances cannot be alienated for above fifty years no man can be raised above the rest unless he be called by God and enabled by his Spirit to conduct the People when this man dies he that has the same Spirit must succeed as Joshua did to Moses and his Children can have no title to his Office when such a man appears a Sanhedrim of seventy men chosen out of the whole People are to judg such causes as relate to themselves whilst those of greater extent and importance are referred to the General Assemblies Here is no mention of a King and consequently if we must take this Law for our pattern we cannot have one If the point be driven to the utmost and the precept of Deuteronomy where God permitted them to have a King if they thought fit when they came into the promised Land be understood to extend to all Nations every one of them must have the same liberty of taking their own time chusing him in their own way dividing the Kingdom having no King and setting up other Governors when they please as before the Election of Saul and after the return from the Captivity and even when they have a King he must be such a one as is describ'd in the same Chapter who no more resembles the Soveraign Majesty that our Author adores and agrees as little with his Maxims as a Tribun of the Roman People We may therefore conclude that if we are to follow the Law of Moses we must take it with all the appendages a King can be no more and no otherwise than he makes him for whatever we read of the Kings they had were extreme deviations from it No Nation can make any Law and our Lawyers burning their Books may betake themselves to the study of the Pentateuch in which tho some of them may be well versed yet probably the profit arising from thence will not be very great But if we are not obliged to live in a conformity to the Law of Moses every People may frame Laws for themselves and we cannot be denied the right that is common to all Our Laws were not sent from Heaven but made by our Ancestors according to the light they had and their present occasions We inherit the same right from them and as we may without vanity say that we know a little more than they did if we find our selves prejudic'd by any Law that they made we may repeal it The safety of the People was their supreme Law and is so to us neither can we be thought less fit to judg what conduces to that end than they were If they in any Age had bin perswaded to put themselves under the power or in our Author's phrase under the sovereign Majesty of a child a fool a mad or desperately wicked person and had annexed the right conferred upon him to such as should succeed it had not bin a just and right Sanction and having none of the qualities essentially belonging to a Law could not have the effect of a Law It cannot be for the good of a People to be governed by one who by nature ought to be governed or by age or accident is rendred unable to govern himself The publick interests and the concernments of private men in their lands goods liberties and lives for the preservation of which our Author says that regal Prerogative is only constituted cannot be preserved by one who is transported by his own passions or follies a slave to his lusts and vices or which is sometimes worse governed by the vilest of men and women who flatter him in them and push him on to do such things as even they would abhor if they were in his place The turpitude and impious madness of such an act must necessarily make it void by overthrowing the ends for which it was made since that justice which was sought cannot be obtain'd nor the evils that were fear'd prevented and they for whose good it was intended must necessarily have a right of abolishing it This might be sufficient for us tho our Ancestors had enslaved themselves But God be thanked we are not put to that trouble We have no reason to believe we are descended from such fools and beasts as would willingly cast themselves and us into such an excess of misery and shame or that they were so tame and cowardly to be subjected by force or fear We know the value they set upon their Liberties and the courage with which they defended them and we can have no better example to incourage us never to suffer them to be violated or diminished
and the Verdict is from them tho the Judges having heard the point argued declare the sense of the Law thereupon Wherefore if I should grant that the King might personally assist in judgments his work could only be to prevent frauds and by the advice of the Judges to see that the Laws be duly executed or perhaps to inspect their behaviour If he has more than this it must be by virtue of his politick capacity in which he is understood to be always present in the principal Courts where Justice is always done whether he who wears the Crown be young or old wise or ignorant good or bad or whether he like or dislike what is done Moreover as Governments are instituted for the obtaining of Justice and the King is in a great measure entrusted with the power of executing it 't is probable that the Law would have required his presence in the distribution if there had bin but one Court that at the same time he could be present in more than one that it were certain he would be guilty of no miscarriages that all miscarriages were to be punished in him as well as in the Judges or that it were certain he should always be a man of such wisdom industry experience and integrity as to be an assistance to and a watch over those who are appointed for the administration of Justice But there being many Courts sitting at the same time of equal Authority in several places far distant from each other impossible for the King to be present in all no manner of assurance that the same or greater miscarriages may not be committed in his presence than in his absence by himself than others no opportunity of punishing every delict in him without bringing the Nation into such disorder as may be of more prejudice to the publick than an injury done to a private man the Law which intends to obviate offences or to punish such as cannot be obviated has directed that those men should be chosen who are most knowing in it imposes an Oath upon them not to be diverted from the due course of justice by fear or favour hopes or reward particularly by any command from the King and appoints the severest punishments for them if they prove false to God and their Country If any man think that the words cited from Bracton by our Author upon the question Quis primo principaliter possit debeat judicare c. Sciendum est quod Rex non alius si solus ad haec sufficere possit cum ad hoc per virtutem Sacramenti teneatur are contrary to what I have said I desire the context may be considered that his opinion may be truly understood tho the words taken simply and nakedly may be enough for my purpose For 't is ridiculous to infer that the King has a right of doing any thing upon a supposition that 't is impossible for him to do it He therefore who says the King cannot do it says it must be done by others or not at all But having already proved that the King merely as King has none of the qualities required for judging all or any cases and that many Kings have all the desects of age and person that render men most unable and unfit to give any Sentence we may conclude without contradicting Bracton that no King as King has a power of judging because some of them are utterly unable and unfit to do it and if any one has such a power it must be confer'd upon him by those who think him able and fit to perform that work When Filmer finds such a man we must inquire into the extent of that power which is given to him but this would be nothing to his general proposition sor he himself would hardly have inferr'd that because a power of judging in some cases was conserred upon one Prince on account of his fitness and ability therefore all of them however unfit and unable have a power of deciding all cases Besides if he believe Bracton this power of judging is not inherent in the King but incumbent upon him by virtue of his Oath which our Author endeavours to enervate and annul But as that Oath is grounded upon the Law and the Law cannot presume impossibilities and absurdities it cannot intend and the Oath cannot require that a man should do that which he is unable and unfit to do Many Kings are unfit to judg causes the Law cannot therefore intend they should do it The Context also shews that this imagination of the King 's judging all causes if he could is merely Chymerical for Bracton says in the same Chapter that the power of the King is the power of the Law that is that he has no power but by the Law And the Law that aims at justice cannot make it to depend upon the uncertain humour of a Child a Woman or a foolish Man for by that means it would destroy it self The Law cannot therefore give any such power and the King cannot have it If it be said that all Kings are not so that some are of mature age wise just and good or that the question is not what is good sor the Subject but what is glorious to the King and that he must not lose his right tho the People perish I answer first that whatsoever belongs to Kings as Kings belongs to all Kings this Power of judging cannot belong to all for the Reasons above mentioned it cannot therefore belong to any as King nor without madness be granted to any till he has given testimony of such Wisdom Experience Diligence and Goodness as is required for so great a work It imports not what his Ancestors were Virtues are not entail'd and it were less improper for the Heirs of Hales and Harvey to pretend that the Clients and Patients of their Ancestors should depend upon their advice in matters of Law and Physick than for the Heirs of a great and wise Prince to pretend to Powers given on account of virtue if they have not the same talents for the performance of the works required Common sense declares that Governments are instituted and Judicatures erected for the obtaining of justice The Kings Bench was not established that the Chief Justice should have a great Office but that the oppressed should be relieved and right done The Honor and Profit he receives comes in as it were by accident as the rewards of his service if he rightly perform his duty but he may as well pretend he is there for his own sake as the King God did not set up Moses or Joshua that they might glory in having six hundred thousand men under their command but that they might lead the People into the Land they were to possess that is they were not for themselves but for the People and the glory they acquir'd was by rightly performing the end of their institution Even our Author is obliged to confess this when he says that the Kings Prerogative
to their Country I say that all Nations amongst whom Virtue has bin esteemed have had a great regard to them and their Posterity And tho Kings when they were made have bin intrusted by the Saxons and other Nations with a Power of ennobling those who by services render'd to their Country might deserve that Honor yet the body of the Nobility was more antient than such for it had bin equally impossible to take Kings according to Tacitus out of the Nobility if there had bin no Nobility as to take Captains for their Virtue if there had bin no Virtue and Princes could not without breach of that trust confer Honors upon those that did not deserve them which is so true that this practice was objected as the greatest crime against Vortigern the last and the worst of the British Kings and tho he might pretend according to such cavils as are usual in our time that the judgment of those matters was reserred to him yet the world judged of his Crimes and when he had render'd himself odious to God and men by them he perished in them and brought destruction upon his Country that had suffer'd them too long As among the Turks and most of the Eastern Tyrannies there is no Nobility and no man has any considerable advantage above the common People unless by the immediate favour of the Prince so in all the legal Kingdoms of the North the strength of the Government has always bin placed in the Nobility and no better defence has bin found against the encroachments of ill Kings than by setting up an Order of men who by holding large Territories and having great numbers of Tenants and Dependents might be able to restrain the exorbitances that either the Kings or the Commons might run into For this end Spain Germany France Poland Denmark Sweeden Scotland and England were almost wholly divided into Lordships under several names by which every particular Possessor owed Allegiance that is such an Obedience as the Law requires to the King and he reciprocally swore to perform that which the same Law exacted from him When these Nations were converted to the Christian Religion they had a great veneration for the Clergy and not doubting that the men whom they esteemed holy would be just thought their Liberties could not be better secured than by joining those who had the direction of their Consciences to the Noblemen who had the command of their Forces This succeeded so well in relation to the defence of the publick Rights that in all the forementioned States the Bishops Abbots c. were no less zealous or bold in defending the publick Liberty than the best and greatest of the Lords And if it were true that things being thus established the Commons did neither personally nor by their Representatives enter into the General Assemblies it could be of no advantage to Kings for such a Power as is above-mentioned is equally inconsistent with the absolute Sovereignty of Kings if placed in the Nobility and Clergy as if the Commons had a part If the King has all no other man nor number of men can have any If the Nobility and Clergy have the power the Commons may have their share also But I affirm that those whom we now call Commons have always had a part in the Government and their place in the Councils that managed it for if there was a distinction it must have bin by Patent Birth or Tenure As for Patents we know they began long after the coming of the Normans and those that now have them cannot pretend to any advantage on account of Birth or Tenure beyond many of those who have them not Nay besides the several Branches of the Families that now enjoy the most antient Honors which consequently are as noble as they and some of them of the elder Houses we know many that are now called Commoners who in antiquity and eminency are no way inferior to the chief of the titular Nobility and nothing can be more absurd than to give a prerogative of Birth to Cr-v-n T-ft-n H-ae B-nn-t Osb-rn and others before the Cliftons Hampdens Courtneys Pelhams St. Johns Baintons Wilbrahams Hungerfords and many others And if the Tenures of their Estates be consider'd they have the same and as antient as any of those who go under the names of Duke or Marquess I forbear to mention the sordid ways of attaining to Titles in our days but whoever will take the pains to examine them shall find that they rather defile than ennoble the possessors And whereas men are truly ennobled only by Virtue and respect is due to such as are descended from those who have bravely serv'd their Country because it is presumed till they shew the contrary that they will resemble their Ancestors these modern Courtiers by their Names and Titles frequently oblige us to call to mind such things as are not to be mentioned without blushing Whatever the antient Noblemen of England were we are sure they were not such as these And tho it should be confess'd that no others than Dukes Marquesses Earls Viscounts and Barons had their places in the Councils mentioned by Cesar and Tacitus or in the great Assemblies of the Saxons it could be of no advantage to such as now are called by those names They were the titles of Offices conserred upon those who did and could best conduct the people in time of War give Counsel to the King administer Justice and perform other publick duties but were never made hereditary except by abuse much less were they sold for money or given as recompences of the vilest services If the antient order be totally inverted and the ends of its institution perverted they who from thence pretend to be distinguished from other men must build their claim upon something very different from Antiquity This being sufficient if I mistake not to make it appear that the antient Councils of our Nation did not consist of such as we now call Noblemen it may be worth our pains to examine of what sort of men they did consist And tho I cannot much rely upon the credit of Camden which he has forfeited by a great number of untruths I will begin with him because he is cited by our Author If we will believe him That which the Saxons called Wittenagemot we may justly name Parliament which has the supreme and most sacred Authority of making abrogating and interpreting Laws and generally of all things relating to the safety of the Commonwealth This Wittenagemot was according to William of Malmsbury The general meeting of the Senat and People and Sir Harry Spelman calls it The General Council of the Clergy and People In the Assembly at Calcuth it was decreed by the Archbishops Bishops Abbots Dukes Senators and the People of the Land Populo terrae that the Kings should be elected by the Priests and Elders of the People By these Offa Ina and others were made Kings and Alfred
according to the variety of times and other occurrences We have such footsteps remaining of the name of Baron as plainly shew the signification of it The Barons of London and the Cinq Ports are known to be only the Freemen of those places In the petty Court-Barons every man who may be of a Jury is a Baron These are Noblemen for there are noble Nations as well as noble men in Nations The Mammalukes accounted themselves to be all noble tho born slaves and when they had ennobled themselves by the use of Arms they look'd upon the noblest of the Egyptians as their slaves Tertullian writing not to some eminent men but to the whole People of Carthage calls them Antiquitate Nobiles Nobilitate felices Such were the Saxons ennobled by a perpetual application to those exercises that belong to Noblemen and an abhorrence to any thing that is vile and sordid Lest this should seem far fetch'd to those who please themselves with cavilling they are to know that the same General Councils are expressed by other Authors in other words They are called The General Council of the Bishops Noblemen Counts all the wise men Elders and People of the whole Kingdom in the time of Ina. In that of Edward the elder The Great Council of the Bishops Abbots Noblemen and People William of Malmsbury calls them The General Senat and Assembly of the People Sometimes they are in short called Clergy and People but all express the same power neither received from nor limitable by Kings who are always said to be chosen or made and sometimes deposed by them William the Norman found and left the Nation in this condition Henry the second John and Henry third who had nothing but what was conferred upon them by the same Clergy and People did so too Magna Charta could give nothing to the People who in themselves had all and only reduced into a small Volume the Rights which the Nation was resolved to maintain brought the King to confess they were perpetually inherent and time out of mind enjoyed and to swear that he would no way violate them if he did he was ipso facto excommunicated and being thereby declared to be an execrable perjur'd Person they knew how to deal with him This Act has bin confirmed by thirty Parliaments and the proceedings with Kings who have violated their Oaths as well before as after the time of Henry the third which have bin already mentioned are sufficient to shew that England has always bin governed by it self and never acknowledged any other Lord than such as they thought fit to set up SECT XXIX The King was never Master of the Soil THOSE who without regard to truth resolve to insist upon such points as they think may serve their designs when they find it cannot be denied that the powers before mentioned have bin exercised by the English and other Nations say that they were the concessions of Kings who being masters of the Soil might bestow parcels upon some Persons with such conditions as they pleased retaining to themselves the supreme dominion of the whole and having already as they think made them the Fountains of Honour they proceed to make them also the Fountains of Property and for proof of this alledg that all Lands tho held of mean Lords do by their Tenures at last result upon the King as the Head from whom they are enjoyed This might be of force if it were true but matters of the highest importance requiring a most evident proof we are to examine First if it be possible and in the next place if it be true 1. For the first No man can give what he has not Whoever therefore will pretend that the King has bestowed this propriety must prove that he had it in himself I confess that the Kings of Spain and Portugal obtained from the Pope grants of the Territories they possessed in the West-Indies and this might be of some strength if the Pope as Vicar of Christ had an absolute dominion over the whole earth but if that fail the whole falls to the ground and he is ridiculously liberal of that which no way belongs to him My business is not to dispute that point but before it can have any influence upon our Affairs our Kings are to prove that they are Lords of England upon the same Title or some other equivalent to it When that is done we shall know upon whom they have a dependence and may at leisure consider whether we ought to acknowledg and submit to such a Power or give reasons for our refusal But there being no such thing in our present case their property must be grounded upon something else or we may justly conclude they have none In order to this 't is hardly worth the pains to search into the obscure remains of the British Histories For when the Romans deserted our Island they did not confer the right they had whether more or less upon any man but left the enjoyment of it to the poor remainders of the Nation and their own established Colonies who were grown to be one People with the Natives The Saxons came under the conduct of Hengist and Horsa who seem to have bin sturdy Pirats but did not that I can learn bear any Characters in their persons of the so much admired Sovereign Majesty that should give them an absolute dominion or propriety either in their own Country or any other they should set their feet upon They came with about a hundred men and chusing rather to serve Vortigern than to depend upon what they could get by rapine at Sea lived upon a small proportion of Land by him allotted to them Tho this seems to be but a slender encouragement yet it was enough to invite many others to follow their Example and Fortune so that their number increasing the County of Kent was given to them under the obligation of serving the Britans in their Wars Not long after Lands in Northumberland were bestowed upon another company of them with the same condition This was all the Title they had to what they enjoyed till they treacherously killed four hundred and sixty or as William of Malmsbury says three hundred principal men of the British Nobility and made Vortigern Prisoner who had bin so much their Benefactor that he seems never to have deserved well but from them and to have incens'd the Britans by the favour he shew'd them as much as by the worst of his Vices And certainly actions of this kind composed of falshood and cruelty can never create a right in the opinion of any better men than Filmer and his Disciples who think that the power only is to be regarded and not the means by which it is obtained But tho it should be granted that a right had bin thus acquired it must accrue to the Nation not to Hengist and Horsa If such an acquisition be called a Conquest the benefit must belong to
of the principal as remained due to them has bin repay'd and the Lands resumed SECT XXX Henry the First was King of England by as good a Title as any of his Predecessors or Successors HAVING made it appear as I suppose that the antient Nobility of England was composed of such men as had bin ennobled by bearing Arms in the defence or enlargement of the Common-wealth that the Dukes Earls c. were those who commanded them that they and their dependents received Lands for such services under an obligation of continuing to render the like and according to their several degrees and proportions to provide and maintain Horses Arms and Men for the same uses it cannot be denied that they were such Gentlemen and Lords of Mannors as we now call Commoners together with the Freeholders and such as in war were found most able to be their Leaders Of these the Micklegemots Wittenagemots and other publick Assemblies did consist and nothing can be more absurd than to assign the names and rights of Duke Earl and Vicount which were names of Offices to those who have not the Offices and are no way fit for them If our Author therefore had said that such as these who had always composed the great Councils of our Nation had in favour of Henry the First bestowed the Crown upon him as they had done upon his Father and Brother I should agree with him but 't is the utmost extravagance to say that he who had neither title nor possession should give the power to those who had always bin in the possession of it and exercised it in giving to him whatsoever he had But I most wonder he should so far forget himself to call this Henry a Usurper and detract from the validity of his Acts because he had no title whereas there neither is was or can be a Usurper if there be any truth in his Doctrine for he plainly tells us we are only to look to the power and not at all to the means and ways by which it is obtained and making no difference between a King and a Tyrant enjoins an equal submission to the commands of both If this were only a slip of his Pen and he did really take this Henry to be a Usurper because he had not a good title I should desire to know the marks by which a lawful King is distinguished from a Usurper and in what a just Title dos consist If he place it in an hereditary Succession we ought to be informed whether this right must be deduced from one universal Lord of Mankind or from a particular Lord of every People If from the universal Lord the same descent that gives him a right to the dominion of any one Country enslaves the whole world to him if from the particular Lord of one place proof must be given how he came to be so for if there was a defect in the first it can never be repaired and the possession is no more than a continued Usurpation But having already proved the absurdity of any pretence to either I shall forbear the repetition and only say that if the course of Succession may never be justly interrupted the family of Meroveus could not have had any right to the Crown of France Pepin was a Usurper if it must for ever have continued in the descendents of Meroveus and Hugh Capet could have no title if the race of Pepin might not be dispossess'd I leave our Author to dispute this point with the King of France and when he has so far convinced him that he is a Usurper as to perswade him to resign his Crown to the house of Austria claiming from Pharamond or to that of Lorrain as descended from Pepin I can give him half a dozen more knots which will not be with less difficulty untied and which instead of establishing the titles of such Kings as are known to us will overthrow them all unless a right be given to usurpation or the consent of a People do confer it But if there is such a thing as a Usurper and a rule by which men may judg of Usurpation 't is not only lawful but necessary for us to examine the titles of such as go under the name of Kings that we may know whether they are truly so or not lest through ignorance we chance to give the veneration and obedience that is due to a King to one who is not a King and deny it to him who by an uninterruptible line of Descent is our natural Lord and thereby prefer the worst of men and our most bitter enemy before the Person we ought to look upon as our Father and if this prove dangerous to one or more Kings 't is our Author's fault not mine If there be no Usurper nor rule of distinguishing him from a lawful Prince Filmer is the worst of all triflers and impostors who grounds his Arguments in the most serious matters upon what he esteems to be false but the truth is he seems to have set himself against humanity and common sense as much as against Law and Virtue and if he who so frequently contradicts himself can be said to mean any thing he would authorize rapine and murder and perswade us to account those to be rightful Kings who by treachery and other unjust means overthrow the right of Descent which he pretends to esteem sacred as well as the Liberties of Nations which by better judges are thought to be so and gives the odious name of usurpation to the advancement of one who is made King by the consent of a willing People But if Henry the First were a Usurper I desire to know whether the same name belongs to all our Kings or which of them deserves a better that we may understand whose acts ought to be reputed legal and to whose Descent we owe veneration or whether we are wholly exempted from all for I cannot see a possibility of fixing the guilt of Usurpation upon Henry the First without involving many if not all our Kings in the same If his title was not good because his Brother Robert was still living that of Rufus is by the same reason overthrown and William their sather being a bastard could have none This fundamental defect could never be repair'd for the Successors could inherit no more than the right of the first which was nothing Stephen could deduce no title either from Norman or Saxon whatsoever Henry the second pretended must be from his Mother Maud and any other might have bin preferred before her as well as he If her title was from the Normans it must be void since they had none and the story of Edgar Atheling is too impertinent to deserve mention But however it could be of no advantage to her for David King of Scotland Brother to her Mother from whom only her title could be derived was then alive with his Son Henry who dying not long after left three Sons and three Daughters whose posterity being
those that conquer'd This was not the work of two men and those who had bin free at home can never be thought to have left their own Country to fight as slaves for the glory and profit of two men in another It cannot be said that their wants compelled them for their Leaders suffer'd the same and could not be relieved but by their assistance and whether their enterprize was good or bad just or unjust it was the same to all No one man could have any right peculiar to himself unless they who gained it did confer it upon him and 't is no way probable that they who in their own Country had kept their Princes within very narrow limits as has bin proved should resign themselves and all they had as soon as they came hither But we have already shewn that they always continued most obstinate defenders of their Liberty and the Government to which they had bin accustomed that they managed it by themselves and acknowledged no other Laws than their own Nay if they had made such a resignation of their Right as was necessary to create one in their Leaders it would be enough to overthrow the proposition for 't is not then the Leader that gives to the People but the People to the Leader If the people had not a right to give what they did give none was conferred upon the receiver if they had a right he that should pretend to derive a benefit from thence must prove the grant that the nature and intention of it may appear 2. To the second If it be said that Records testify all Grants to have bin originally from the King I answer That tho it were confessed which I absolutely deny and affirm that our Rights and Liberties are innate inherent and enjoy'd time out of mind before we had Kings it could be nothing to the question which is concerning Reason and Justice and if they are wanting the defect can never be supplied by any matter of fact tho never so clearly proved Or if a Right be pretended to be grounded upon a matter of fact the thing to be proved is that the people did really confer such a right upon the first or some other Kings And if no such thing do appear the proceedings of one or more Kings as if they had it can be of no value But in the present case no such grant is pretended to have bin made either to the first or to any of the following Kings the Right they had not their Successors could not inherit and consequently cannot have it or at most no better title to it than that of Usurpation But as they who enquire for truth ought not to deny or conceal any thing I may grant that Mannors c. were enjoyed by tenure from Kings but that will no way prejudice the cause I defend nor signify more than that the Countries which the Saxons had acquired were to be divided among them and to avoid the quarrels that might arise if every man took upon him to seize what he could a certain method of making the distribution was necessarily to be fixed and it was fit that every man should have something in his own hands to justify his Title to what he possessed according to which controversies should be determined This must be testified by some body and no man could be so fit or of so much credit as he who was chief among them and this is no more than is usual in all the Societies of the World The Mayor of every Corporation the Speaker or Clerk of the House of Peers or House of Commons the first President of every Parliament or Presidial in France the Consul Burgermaster Advoyer or Bailiff in every free Town of Holland Germany or Switzerland sign the publick Acts that pass in those places The Dukes of Venice and Genoa do the like tho they have no other power than what is conferred upon them and of themselves can do little or nothing The Grants of our Kings are of the same nature tho the words mero motu nostro seem to imply the contrary sor Kings speak always in the plural number to shew that they do not act for themselves but for the Societies over which they are placed and all the veneration that is or can be given to their Acts dos not exalt them but those from whom their Authority is derived and for whom they are to execute The Tyrants of the East and other Barbarians whose power is most absolute speak in the single number as appears by the decrees of Nabuchodonosor Cyrus Darius and Abasaerus recited in Scripture with others that we hear of daily from those parts but wheresoever there is any thing of civility or regularity in Government the Prince uses the plural to shew that he acts in a publick capacity From hence says Grotius the rights of Kings to send Ambassadors make Leagues c. do arise the confederacies made by them do not terminate with their lives because they are not for themselves they speak not in their own Persons but as representing their People and ae King who is depriv'd of his Kingdom loses the right of sending Ambassadors because he can no longer speak for those who by their own consent or by a foreign force are cut off from him The question is not whether such a one be justly or unjustly deprived sor that concerns only those who do it or suffer it but whether he can oblige the People and 't is ridiculous for any Nation to treat with a man that cannot perform what shall be agreed or for him to stipulate that which can oblige and will be made good only by himself But tho much may be left to the discretion of Kings in the distribution of Lands and the like yet it no way diminishes the right of the People nor consers any upon them otherwise to dispose of what belongs to the publick than may tend to the common good and the accomplishment of those ends for which they are entrusted Nay if it were true that a conquered Country did belong to the Crown the King could not dispose of it because 't is annexed to the Office and not alienable by the Person This is not only found in regular mixed Monarchies as in Sweden where the Grants made by the last Kings have bin lately rescinded by the General Assembly of Estates as contrary to Law but even in the most absolute as in France where the present King who has stretched his power to the utmost has lately acknowledged that he cannot do it and according to the known maxim of the State that the demeasnes of the Crown which are designed for the defraying of publick Charges cannot be alienated all the Grants made within the last fifteen years have bin annulled even those who had bought Lands of the Crown have bin called to account and the Sums given being compared with the profits received and a moderate interest allowed to the purchasers so much
than what is suffer'd or must in a short time fall upon those who are in this condition They who are already fallen into all that is odious shameful and miserable cannot justly fear When things are brought to such a pass the boldest counsels are the most safe and if they must perish who lie still and they can but perish who are most active the choice is easily made Let the danger be never so great there is a possibility of safety whilst men have life hands arms and courage to use them but that people must certainly perish who tamely suffer themselves to be oppress'd either by the injustice cruelty and malice of an ill Magistrate or by those who prevail upon the vices and infirmities of weak Princes 'T is in vain to say that this may give occasion to men of raising tumults or civil war for tho these are evils yet they are not the greatest of evils Civil War in Macchiavels account is a Disease but Tyranny is the death of a State Gentle ways are first to be used and 't is best if the work can be done by them but it must not be left undone if they fail 'T is good to use supplications advices and remonstrances but those who have no regard to justice and will not hearken to counsel must be constrained 'T is folly to deal otherwise with a man who will not be guided by reason and a Magistrate who despises the Law or rather to think him a man who rejects the essential principle of a man or to account him a Magistrate who overthrows the Law by which he is a Magistrate This is the last result but those Nations must come to it which cannot otherwise be preserved Nero's madness was not to be cured nor the mischievous effects of it any otherwise to be suppressed than by his death He who had spared such a Monster when it was in his power to remove him had brought destruction upon the whole Empire and by a foolish clemency made himself the Author of his future villanics This would have bin yet more clear if the world had then bin in such a temper as to be capable of an intire liberty But the antient foundations had bin overthrown and nothing better could be built upon the new than something that might in part resist that torrent of iniquity which had overflow'd the best part of the world and give mankind a little time to breath under a less barbarous Master Yet all the best men did join in the work that was then to be done tho they knew it would prove but imperfect The sacred History is not without examples of this kind When Ahab had subverted the Law set up false Witnesses and corrupt Judges to destroy the innocent killed the Prophets and established Idolatry his house must then be cut off and his blood be lickt up by dogs When matters are brought to this pass the decision is easy The question is only whether the punishment of crimes shall fall upon one or a few persons who are guilty of them or upon a whole Nation that is innocent If the Father may not die for the Son nor the Son for the Father but every one must bear the penalty of his own crimes it would be most absurd to punish the people for the guilt of Princes When the Earl of Morton was sent Ambassador to Queen Elizabeth by the Estates of Scotland to justify their proceedings against Mary their Queen whom they had obliged to renounce the Government he alledged amongst other things the murder of her Husband plainly proved against her asserted the antient right and custom of that Kingdom of examining the actions of their Kings by which means he said many had bin punished with death imprisonment and exile confirmed their actions by the examples of other Nations and upon the whole matter concluded that if she was still permitted to live it was not on account of her innocence or any exemption from the penalties of the Law but from the mercy and clemency of the people who contenting themselves with a resignation of her right and power to her Son had spared her This discourse which is set down at large by the Historian cited on the margin being of such strength in it self as never to have bin any otherwise answered than by railing and no way disapproved by Queen Elizabeth or her Council to whom it was made either upon a general account of the pretensions of Princes to be exempted from the penalties of the Law or any pretext that they had particularly misapplied them in relation to their Queen I may justly say that when Nations fall under such Princes as are either utterly uncapable of making a right use of their power or do maliciously abuse that Authority with which they are entrusted those Nations stand obliged by the duty they owe to themselves and their posterity to use the best of their endeavours to remove the evil whatever danger or difficulties they may meet with in the performance Pontius the Samnite said as truly as bravely to his Countrymen That those Arms were just and pious that were necessary and necessary when there was no hope of safety by any other way This is the voice of mankind and is dislik'd only by those Princes who fear the deserved punishments may fall upon them or by their Servants and Flatterers who being for the most part the Authors of their crimes think they shall be involved in their ruin SECT XLI The People for whom and by whom the Magistrate is created can only judg whether he rightly perform his Office or not T IS commonly said that no man ought to be the Judg of his own case and our Author lays much weight upon it as a fundamental maxim tho according to his ordinary inconstancy he overthrows it in the case of Kings where it ought to take place if in any for it often falls out that no men are less capable of forming a right judgment than they Their passions and interests are most powerful to disturb or pervert them No men are so liable to be diverted from justice by the flatteries of corrupt Servants They never act as Kings except for those by whom and for whom they are created and acting for others the account of their actions cannot depend upon their own will Nevertheless I am not afraid to say that naturally and properly a man is the judg of his own concernments No one is or can be deprived of this privilege unless by his own consent and for the good of that Society into which he enters This Right therefore must necessarily belong to every man in all cases except only such as relate to the good of the Community for whose sake he has devested himself of it If I find my self afflicted with hunger thirst weariness cold heat or sickness 't is a folly to tell me I ought not to seek meat drink rest shelter refreshment or physick because I must
not be the judg of my own case The like may be said in relation to my house land or estate I may do what I please with them if I bring no damage upon others But I must not set fire to my house by which my neighbour's house may be burnt I may not erect Forts upon my own Lands or deliver them to a foreign Enemy who may by that means infest my Country I may not cut the banks of the Sea or those of a River lest my neighbour's ground be overflown because the Society into which I am incorporated would by such means receive prejudice My Land is not simply my own but upon condition that I shall not thereby bring damage upon the Publick by which I am protected in the peaceable enjoyment and innocent use of what I possess But this Society leaves me a liberty to take Servants and put them away at my pleasure No man is to direct me of what quality or number they shall be or can tell me whether I am well or ill served by them Nay the State takes no other cognizance of what passes between me and them than to oblige me to perform the contracts I make and not to do that to them which the Law forbids that is to say the Power to which I have submitted my self exercises that jurisdiction over me which was established by my consent and under which I enjoy all the benefits of life which are of more advantage to me than my liberty could have bin if I had retained it wholly in my self The nature also and measure of this submission must be determined by the reasons that induced me to it The Society in which I live cannot subsist unless by rule the equality in which men are born is so perfect that no man will suffer his natural liberty to be abridged except others do the like I cannot reasonably expect to be defended from wrong unless I oblige my self to do none or to suffer the punishment prescribed by the Law if I perform not my engagement But without prejudice to the Society into which I enter I may and do retain to my self the liberty of doing what I please in all things relating peculiarly to my self or in which I am to seek my own convenience Now if a privat man is not subject to the judgment of any other than those to whom he submits himself for his own safety and convenience and notwithstanding that submission still retains to himself the right of ordering according to his own will all things merely relating to himself and of doing what he pleases in that which he dos for his own sake the same right must more certainly belong to whole Nations When a controversy happens between Caius and Seius in a matter of right neither of them may determin the cause but it must be referred to a Judg superior to both not because 't is not fit that a man should be judg of his own case but because they have both an equal right and neither of them ows any subjection to the other But if there be a contest between me and my Servant concerning my service I only am to decide it He must serve me in my own way or be gone if I think fit tho he serve me never so well and I do him no wrong in putting him away if either I intend to keep no servant or find that another will please me better I cannot therefore stand in need of a Judg unless the contest be with one who lives upon an equal foot with me No man can be my Judg unless he be my Superior and he cannot be my Superior who is not so by my consent nor to any other purpose than I consent to This cannot be the case of a Nation which can have no equal within it self Controversies may arise with other Nations the decision of which may be left to Judges chosen by mutual agreement but this relates not to our question A Nation and most especially one that is powerful cannot recede from its own right as a privat man from the knowledge of his own weakness and inability to defend himself must come under the protection of a greater Power than his own The strength of a Nation is not in the Magistrate but the strength of the Magistrate is in the Nation The wisdom industry and valour of a Prince may add to the glory and greatness of a Nation but the foundation and substance will always be in it self If the Magistrate and People were upon equal terms as Caius and Seius receiving equal and mutual advantages from each other no man could be judg of their differences but such as they should set up for that end This has bin done by many Nations The antient Germans referred the decision of the most difficult matters to their Priests the Gauls and Britans to the Druides the Mahometans for some ages to the Califs of Babylon the Saxons in England when they had embraced the Christian Religion to their Clergy Whilst all Europe lay under the Popish Superstition the decision of such matters was frequently assumed by the Pope men often submitted to his judgment and the Princes that resisted were for the most part excommunicated deposed and destroyed All this was done for the same reasons These men were accounted holy and inspired and the sentence pronounced by them was usually reverenced as the judgment of God who was thought to direct them and all those who refused to submit were esteemed execrable But no man or number of men as I think at the institution of a Magistrate did ever say If any difference happen between you or your Successors and us it shall be determined by your self or by them whether they be men women children mad foolish or vicious Nay if any such thing had bin the folly turpitude and madness of such a sanction or stipulation must necessarily have destroy'd it But if no such thing was ever known or could have no effect if it had bin in any place 't is most absurd to impose it upon all The people therefore cannot be deprived of their natural rights upon a frivolous pretence to that which never was and never can be They who create Magistracies and give to them such name form and power as they think fit do only know whether the end for which they were created be performed or not They who give a being to the power which had none can only judg whether it be employ'd to their welfare or turned to their ruin They do not set up one or a few men that they and their posterity may live in splendor and greatness but that Justice may be administred Virtue established and provision made for the publick safety No wise man will think this can be done if those who set themselves to overthrow the Law are to be their own Judges If Caligula Nero Vitellius Domitian or Heliogabalus had bin subject to no other judgment they would have compleated the destruction of the