pleased only to affirm it without giving the least shadow of a reason to perswade us to believe him This might justify me if I should reject his assertion as a thing said gratis but I may safely go a step farther and affirm That men lived under Laws before there were any Kings which cannot be denied if such a Power necessarily belongs to Kings as he ascribes to them For Nimrod who established his Kingdom in Babel is the first who by the Scripture is said to have bin a mighty one in the Earth He was therefore the first King or Kings were not mighty and he being the first King Mankind must have lived till his time without Laws or else Laws were made before Kings To say that there was then no Law is in many respects most absurd for the nature of man cannot be without it and the violences committed by ill men before the Flood could not have bin blamed if there had bin no Law for that which is not cannot be transgressed Cain could not have seared that every man who met him would slay him if there had not bin a Law to slay him that had slain another But in this case the Scripture is clear at least from the time that Noah went out of the Ark for God then gave him a Law sufficient for the state of things at that time if all violence was prohibited under the name of shedding Blood tho not under the same penalty as Murder But Penal Laws being in vain if there be none to execute them such as know God dos nothing in vain may conclude that he who gave this Law did appoint some way for its execution tho unknown to us There is therefore a Law not given by Kings but laid upon such as should be Kings as well as on any other Persons by one who is above them and perhaps I may say that this Law presseth most upon them because they who have most power do most frequently break out into acts of Violence and most of all disdain to have their will restrained and he that will exempt Kings from this Law must either find that they are excepted in the Text or that God who gave it has not a Power over them Moreover it has bin proved at the beginning of this Treatise that the first Kings were of the accursed race and reigned over the accursed Nations whilst the holy Seed had none If therefore there was no Law where there was no King the accursed Posterity of Cham had Laws when the blessed Descendents of Shem had none which is most absurd the word Outlaw or Lawless being often given to the wicked but never to the just and righteous The impious folly of such Assertions gos farther than our Author perhaps suspected for if there be no Law where there is no King the Israelites had no Law till Saul was made King and then the Law they had was from him They had no King before sor they asked one They could not have asked one of Samuel if he had bin a King He had not bin offended and God had not imputed to them the sin of rejecting him if they had asked that only which he had set over them If Samuel were not King Moses Joshua and the other Judges were not Kings for they were no more than he They had therefore no King and consequently if our Author say true no Law If they had no Law till Saul was King they never had any for he gave them none and the Prophets were to blame for denouncing judgments against them for receding from or breaking their Law if they had none He cannot say that Samuel gave them a Law for that which he wrote in a Book and laid up before the Lord was not a Law to the People but to the King If it had bin a Law to the People it must have bin made publick but as it was only to the King he laid it up before God to restify against him if he should adventure to break it Or if it was a Law to the People the matter is not mended for it was given in the time of a King by one who was not King But in truth it was the Law of the Kingdom by which he was King and had bin wholly impertinent if it was not to bind him for it was given to no other person and to no other end Our Author's Assertion upon which all his Doctrine is grounded That there is no Nation that allows Children any action or remedy for being unjustly governed is as impudently false as any other proposed by him for tho a Child will not be heard that complains of the Rod yet our own Law gives relief to Children against their Fathers as well as against other persons that do them injuries upon which we see many ill effects and I do rather relate than commend the practice In other places the Law gives relief against the extravagancies of which Fathers may be guilty in relation to their Children tho not to that excess as to bring them so near to an equality as in England They cannot imprison sell or kill their Children without exposing themselves to the same punishments with other men and if they take their Estates from them the Law is open and gives relief against them but on the other side Children are punished with Death if they strike or outragiously abuse their Parents which is not so with us Now if the Laws of Nations take such care to preserve private men from being too hardly used by their true and natural Fathers who have such a love and tenderness for them in their own Blood that the most wicked and barbarous do much more frequently commit crimes for them than against them how much more necessary is it to restrain the fury that Kings who at the best are but phantastical Fathers may exercise to the destruction of the whole People 'T is a folly to say that David and some other Kings have had or that all should have a tenderness of affection towards their People as towards their Children for besides that even the first Proposition is not acknowledged and will be hardly verified in any one instance there is a vast distance between what men ought to be and what they are Every man ought to be just true and charitable and if they were so Laws would be of no use but it were a madness to abolish them upon a supposition that they are so or to leave them to a future punishment which many do not believe or not regard I am not obliged to believe that David loved every Israelite as well as his Son Absalom but tho he had I could not from thence inser that all Kings do so unless I were sure that all of them were as wise and virtuous as he But to come more close to the matter Do we not know of many Kings who have come to their Power by the most wicked means that can enter into the heart of man even
which they are condemned perpetually to the Gallies and such as are aiding to them to grievous Fines But before this be acknowledged to have any similitude or relation to our discourse concerning Kings it must be proved that the present King or those under whom he claims is or were Proprietors of all the Lands in England and granted the several parcels under the condition of suffering patiently such Inconveniences and Miseries as are above-mentioned or that they who did confer the Crown upon any of them did also give a Propriety in the Land which I do not find in any of the fifteen or sixteen Titles that have bin since the coming in of the Normans and if it was not done to the first of every one it cannot accrue to the others unless by some new act to the same purpose which will not easily be produced It will be no less difficult to prove that any thing unworthy of freemen is by any Tenures imposed in England unless it be the offering up of the Wives and Daughters of Tenants to the Lust of Abbots and Monks and they are so far from being willingly suffer'd that since the Dens and Nurseries of those Beasts were abolished no man that succeeds them has had impudence sufficient to exact the performance and tho the letter of the Law may favour them the turpitude of the thing has extinguished the usage But even the Kings of Israel and Judah who brought upon the People those evils that had bin foretold by Samuel did not think they had a right to the Powers they exercised If the Law had given a right to Ahab to take the best of their Vineyards he might without ceremony have taken that of Naboth and by the majestick power of an absolute Monarch have chastized the churlish Clown who resused to sell or change it for another but for want of it he was obliged to take a very different course If the lives of Subjects had in the like manner depended upon the will of Kings David might without scruple have killed Vriah rather than to place him in the front of the Army that he might fall by his own courage The malice and treachery of such Proceedings argues a defect of power and he that acts in such an oblique manner shews that his actions are not warranted by the Law which is boldly executed in the face of the Sun This shews the interpretation put upon the words Against thee only have I sinned by Court-flatterers to be false If he had not sinned against Bathsheba whom he corrupted Vriah whom he caused to be killed the People that he scandalized and the Law which he violated he had never endeavoured to cover his guilt by so vile a sraud And as he did not thereby fly the sight of God but of men 't is evident that he in that action feared men more than God If by the Examples of Israel and Judah we may judg whether the Inconveniences and Miseries brought upon Nations by their Kings be tolerable or intolerable it will be enough to consider the madness of Sauls cruelty towards his Subjects and the slaughter brought upon them by the hand of the Philistins on Mount Gilboa where he fell with the flower of all Israel the Civil Wars that hapned in the time of David and the Plague brought upon the People by his wickedness the heavy burdens laid upon them by Solomon and the Idolatry favour'd by him the wretched folly of Rehoboam and the defection of the ten Tribes caused by it the Idolatry established by Jeroboam and the Kings of Israel and that of many of those of Judah also the frequent Wars and unheard of Slaughters ensuing thereupon between the Tribes the daily devastations of the Country by all sorts of Strangers the murders of the Prophets the abolition of God's Worship the desolation of Towns and Provinces the Captivity of the ten Tribes carried away into unknown Countries and in the end the abolition of both Kingdoms with the captivity of the Tribe of Judah and the utter destruction of the City It cannot be said that these things were suffer'd under Kings and not from or by them for the desolation of the Cities People and Country is in many places of Scripture imputed to the Kings that taught Israel to sin as appears by what was denounced against Jeroboam Jehu Ahaz Manasseh Zedekiah and others Nay the Captivity of Babylon with the evils ensuing were first announced to Hezekiah for his vanity and Josiah by the like brought a great slaughter upon himself and people But if mischiess fell upon the People by the frailty of these who after David were the best nothing surely less than the utmost of all Miseries could be expected from such as were set to do evil and to make the Nation like to themselves in which they met with too great success If it be pretended that God's People living under an extraordinary Dispensation can be no example to us I desire other Histories may be examined for I confess I know no Nation so great happy and prosperous nor any Power so well established that two or three ill Kings immediately succeeding each other have not bin able to destroy and bring to such a condition that it appeared the Nations must perish unless the Senates Diets and other Assemblies of State had put a stop to the mischief by restraining or deposing them and tho this might be proved by innumerable Testimonies I shall content my self with that of the Roman Empire which perished by the vices corruption and baseness of their Princes the noble Kingdom of the Goths in Spain overthrown by the Tyranny of Witza and Rodrigo the present state of Spain now languishing and threatning ruin from the same causes France brought to the last degree of misery and weakness by the degenerate races of Pharamond and Charles preserved and restored by the Virtues of Pepin and Capet to which may be added those of our own Country which are so well known that I need not mention them SECT VI. 'T is not good for such Nations as will have Kings to suffer them to be glorious powerful or abounding in Riches OUR Author having hitherto spoken of all Nations as born under a necessity of being subject to Absolute Monarchy which he pretends to have bin set up by the universal and indispensible Law of God and Nature now seems to leave to their discretion whether they will have a King or not but says that those who will have a King are bound to allow him Royal maintenance by providing Revenues for the Crown since it is for the Honour Profit and Safety of the People to have their King glorious powerful and abounding in Riches If there be any thing of sense in this Clause there is nothing of truth in the foundation or principle of his whole Book For as the right and being of a Father is natural or inherent and no ways depending upon the will of the Child that of a
most opposite to his Maxims He lived says he in Henry the third's time since Parliaments were instituted as if there had bin a time when England had wanted them or that the establishment of our Liberty had bin made by the Normans who if we will believe our Author came in by force of Arms and oppressed us But we have already proved the Essence of Parliaments to be as antient as our Nation and that there was no time in which there were not such Councils or Assemblies of the People as had the power of the whole and made or unmade such Laws as best pleased themselves We have indeed a French word from a People that came from France but the Power was always in our selves and the Norman Kings were obliged to swear they would govern according to the Laws that had bin made by those Assemblies It imports little vvhether Bracton lived before or after they came amongst us His vvords are Omnes sub eo ipse sub nullo sed tantum sub Deo All are under him and he under none but God only If he offend since no Writ can go out against him their Remedy is by petitioning him to amend his Faults which if he will not do it is punishment enough for him to expect God as an avenger Let none presume to look into his Deeds much less to oppose him Here is a mixture of Sense and Nonsense Truth and Falshood the vvords of Bracton vvith our Author's foolish Inferences from them Bracton spoke of the politick capacity of the King vvhen no Law had forbidden him to divide it from his natural He gave the name of King to the sovereign Power of the Nation as Jacob called that of his Descendents The Scepter vvhich he said should not depart from Judah till Shiloh came tho all men know that his Race did not reign the third part of that time over his own Tribe nor full fourscore years over the whole Nation The same manner of speech is used in all parts of the world Tertullian under the name of Cesar comprehended all magistratical Power and imputed to him the Acts of which in his person he never had any knowledg The French say their King is always present sur son lit de justice in all the Sovereign Courts of the Kingdom which are not easily numbred and that Maxim could have in it neither sense nor truth if by it they meant a Man who can be but in one place at one time and is always comprehended within the Dimensions of his own Skin These things could not be unknown to Bracton the like being in use amongst us and he thought it no offence so far to follow the dictates of Reason prohibited by no Law as to make a difference between the invisible and omnipresent King who never dies and the Person that wears the Crown whom no man without the guilt of Treason may endeavour to kill since there is an Act of Parliament in the case I will not determine whether he spoke properly or no as to England but if he did not all that he said being upon a false supposition is nothing to our purpose The same Bracton says the King doth no wrong in as much as he doth nothing but by Law The Power of the King is the Power of the Law a power of right not of wrong Again If the King dos injustice he is not King In another place he has these words The King therefore ought to exercise the Power of the Law as becomes the Vicar and Minister of God upon Earth because that Power is the Power of God alone but the Power of doing wrong is the Power of the Devil and not of God And the King is his Minister whose Work he dos Whilst he dos Justice he is the Vicar of the Eternal King but if he deflect from it to act unjustly he is the Minister of the Devil He also says that the King is singulis major universis minor and that he who is in justitia exequenda omnibus major in justitia recipienda cuilibet ex plebe fit aequalis I shall not say Bracton is in the right when he speaks in this manner but 't is a strange impudence in Filmer to cite him as a Patron of the absolute Power of Kings who dos so extremely depress them But the grossest of his follies is yet more pardonable than his detestable fraud in falsifying Bracton's words and leaving out such as are not for his purpose which shew his meaning to be directly contrary to the sense put upon them That this may appear I shall set down the words as they are found in Bracton Ipse autem Rex non debet esse sub homine sed sub Deo sub Lege quia Lex facit Regem Attribuat ergo Rex Legi quod Lex attribuit ei id est dominationem potestatem Non est enim Rex ubi dominatur volunt as non Lex quod sub Lege esse debeat cum sit Dei vicarius evidenter apparet If Bracton therefore be a competent Judg the King is under the Law and he is not a King nor God's Vicegerent unless he be so and we all know how to proceed with those who being under the Law offend against it For the Law is not made in vain In this case something more is to be done than petitioning and 't is ridiculous to say that if he will not amend 't is punishment enough for him to expect God an Avenger for the same may be said of all Malefactors God can sufficiently punish Thieves and Murderers but the future Judgment of which perhaps they have no belief is not sufficient to restrain them from committing more Crimes nor to deter others from following their example God was always able to punish Murderers but yet by his Law he commands man to shed the blood of him who should shed man's blood and declares that the Land cannot be purged of the Guilt by any other means He had Judgments in store for Jeroboam Ahab and those that were like them but yet he commanded that according to that Law their Houses should be destroy'd from the earth The dogs lick'd up the blood of Ahab where they had licked that of Naboth and eat Jezebel who had contrived his murder But says our Author we must not look into his deeds much less oppose them Must not David look into Saul's deeds nor oppose them Why did he then bring together as many men as he could to oppose and make foreign Alliances against him even with the Moabites and the accursed Philistins Why did Jehu not only destroy Ahab's house but kill the King of Judah and his forty Brothers only for going to visit his Children Our Author may perhaps say because God commanded them But if God commanded them to do so he did not command them and all mankind not to do so and if he did not forbid they have nothing to restrain them from
and People at London and Harold excused himself for not performing his Oath to William the Norman because he said he had made it unduly and presumptuously without consulting the Nobility and People and without their Authority William was received with great joy by the Clergy and People and saluted King by all swearing to observe the antient good and approved Laws of England and tho he did but ill perform his Oath yet before his death he seemed to repent of the ways he had taken and only wishing his Son might be King of England he confessed in his last Will made at Caen in Normandy that he neither found nor left the Kingdom as an Inheritance If he possessed no right except what was conferred upon him no more was conserred than had bin enjoy'd by the antient Kings according to the approved Laws which he swore to observe Those Laws gave no power to any till he was elected and that which they did then give was so limited that the Nobility and People reserved to themselves the disposition of the greatest Affairs even to the deposition and expulsion of such as should not well perform the duty of their Oaths and Office And I leave it to our Author to prove how they can be said to have had the Sword and the Power so as to be feared otherwise than as the Apostle says by those that do evil which we acknowledg to be not only in the King but in the lowest Officer of Justice in the world If it be pretended that our later Kings are more to be seared than William the Norman or his Predecessors it must not be as has bin proved either from the general right of Kings or from the Doctrine of the Apostle but from something else that is peculiar and subsequent which I leave our Author's Disciples to prove and an answer may be found in due time But to show that our Ancestors did not mistake the words of the Apostle 't is good to consider when to whom and upon what occasion he spoke The Christian Religion was then in its infancy his discourses were addressed to the Professors of it who tho they soon grew to be considerable in number were for the most part of the meanest sort of People Servants or Inhabitants of the Cities rather than Citizens and Freemen joined in no civil Body or Society nor such as had or could have any part in the Government The occasion was to suppress the dangerous mistake of many converted Jews and others who knowing themselves to be freed from the power of Sin and the Devil presumed they were also freed from the obligation of human Laws And if this Error had not bin crop'd in the bud it would have given occasion to their Enemies who desired nothing more to destroy them all and who knowing that such Notions were stirring among them would have bin glad that they who were not easily to be discovered had by that means discovered themselves This induced a necessity of diverting a poor mean scatter'd People from such thoughts concerning the State to convince them of the Error into which they were fallen that Christians did not owe the same obedience to Civil Laws and Magistrates as other men and to keep them from drawing destruction upon themselves by such ways as not being warranted by God had no promise of his Protection St. Paul's work was to preserve the Professors of Christianity as appears by his own words I exhort that first of all Supplications Prayers Intercessions and giving of thanks be made for all men for Kings and for all that are in Authority that we may live a quiet and peaceable life in all godliness and honesty Put them in mind to be subject to Principalities and Powers to obey Magistrates to be ready for every good work St. Peter agrees with him fully in describing the Magistrate and his Duty shewing the reasons why obedience should be pay'd to him and teaching Christians to be humble and contented with their condition as free yet not using their Liberty for a cover to malice and not only to fear God and honor the King of which conjunction of words such as Filmer are very proud but to honor all men as is said in the same verse This was in a peculiar manner the work of that time in which those who were to preach and propagate the Gospel were not to be diverted from that Duty by entangling themselves in the care of State-affairs but it dos in some sense agree with all times for it can never be the duty of a good man to oppose such a Magistrate as is the Minister of God in the exercise of his Office nor to deny to any man that which is his due But as the Christian Law exempts no man from the Duty he ows to his Father Master or the Magistrate it dos not make him more a Slave than he was before nor deprive him of any natural or civil Right and if we are obliged to pay Tribute Honor or any other thing where it is not due it must be by some Precept very different from that which commands us to give to Cesar that which is Cesar's If he define the Magistrate to be the Minister of God doing Justice and from thence draws the Reasons he gives for rendring Obedience to him we are to inquire whose Minister he is who overthrows it and look for some other reason sor rendring obedience to him than the words of the Apostles If David who was willing to lay down his life sor the people who hated iniquity and would not suffer a liar to come into his presence was the Minister of God I desire to know whose Minister Caligula was who set up himself to be worshipped for a God and would at once have destroyed all the people that he ought to have protected Whose Minister was Nero who besides the abominable impurities of his lise and hatred to all virtue as contrary to his Person and Government set fire to the great City If it be true that contrariorum contraria est ratio these questions are easily decided and if the reasons of things are eternal the same distinction grounded upon truth will be good for ever Every Magistrate and every man by his works will for ever declare whose Minister he is in what spirit he lives and consequently what obedience is due to him according to the Precept of the Apostle If any man ask what I mean by Justice I answer That the Law of the Land as far as it is Sanctio recta jubens honesta prohibens contraria declares what it is But there have bin and are Laws that are neither just nor commendable There was a Law in Rome that no God should be worshipped vvithout the consent of the Senat Upon vvhich Tertullian says scoffingly That God shall not be God unless he please Man and by virtue of this Law the first Christians were exposed to all manner of cruelties and some
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
a Commonwealths-man as Cato but the washed Swine will return to the Mire He overthrows all by a preposterous conjunction of the rights os Kings which are just and by Law with those of Tyrants which are utterly against Law and gives the sacred and gentle name os Father to those Beasts who by their actions declare themselves enemies not only to all Law and Justice but to Mankind that cannot subsist without them This requires no other proof than to examine whether Attila or Tamerlan did well deserve to be called Fathers of the Countries they destroy'd The first of these was usually called the scourge of God and he gloried in the Name The other being reproved for the detestable cruelties he exercised made answer You speak to me as to a man I am not a man but the scourge of God and plague of Mankind This is certainly sweet and gentle Language savouring much of a fatherly tenderness There is no doubt that those who use it will provide for the safety of the Nations under them and the preservation of the Laws of Nature is rightly referred to them and 't is very probable that they who came to burn the Countries and destroy the Nations that fell under their power should make it their business to preserve them and look upon the former Governors as their Fathers whose acts they were obliged to confirm tho they seldom attained to the Dominion by any other means than the slaughter of them and their Families But if the enmity be not against the Nation and the cause of the war be only for Dominion against the ruling Person or Family as that of Baasha against the house of Jeroboam of Zimri against that of Baasha of Omri against Zimri and of Jehu against Joram the prosecution of it is a strange way of becoming the Son of the Person destroyed And Filmer alone is subtil enough to discover that Jehu by extinguishing the house of Ahab drew an obligation upon himself of looking on him as his Father and confirming his acts If this be true Moses was obliged to confirm the acts of the Kings of the Amalekites Moabites and Amorites that he destroy'd the same duty lay upon Joshua in relation to the Cananites but 't is not so easily decided to which of them he did owe that deference for the same could not be due to all and 't is hard to believe that by killing above thirty Kings he should purchase to himself so many Fathers and the like may be said of divers others Moreover there is a sort of Tyrant who has no Father as Agathocles Dionysius Cesar and generally all those who subvert the Liberties of their own Countrey And if they stood obliged to look upon the former Magistrates as their Predecessors and to confirm their Acts the first should have bin to give impunity and reward to any that would kill them it having bin a fundamental Maxim in those States That any man might kill a Tyrant This being in all respects ridiculous and absurd 't is evident that our Author who by proposing such a false security to Nations for their Liberties endeavours to betray them is not less treacherous to Kings when under a pretence of defending their rights he makes them to be the same with those of Tyrants who are known to have none and are Tyrants because they have none and gives no other hopes to Nations of being preserved by the Kings they set up for that end than what upon the same account may be expected from Tyrants whom all wise men have ever abhorr'd and affirmed to have bin produced to bring destruction upon the World and whose Lives have verifi'd the Sentence This is truly to depose and abolish Kings by abolishing that by which and for which they are so The greatness of their Power Riches State and the pleasures that accompany them cannot but create enemies Some will envy that which is accounted Happiness others may dislike the use they make of their Power some may be unjustly exasperated by the best of their Actions when they find themselves incommoded by them others may be too severe judges of slight miscarriages These things may reasonably temper the joys of those who delight most in the advantages of Crowns But the worst and most dangerous of all their enemies are these accursed Sycophants who by making those that ought to be the best of men like to the worst destroy their Being and by perswading the world they aim at the same things and are bound to no other rule than is common to all Tyrants give a fair pretence to ill men to say They are all of one kind And if this should be received for truth even they who think the miscarriages of their Governors may be easily redressed and desire no more would be the most fierce in procuring the destruction of that which is naught in Principle and cannot be corrected SECT XVII Kings cannot be the Interpreters of the Oaths they take OUR Author's Book is so full of absurdities and contradictions that it would be a rope of Sand if a continued series of frauds did not like a string of Poisons running through the whole give it some consistence with it self and shew it to be the work of one and the same hand After having endeavoured to subvert the Laws of God Nature and Nations most especially our own by abusing the Scriptures falsly alledging the Authority of many good Writers and seeking to obtrude upon Mankind a universal Law that would take from every Nation the right of constituting such Governments within themselves as seem most convenient for them and giving rules for the administration of such as they had established he gives us a full view of his Religion and Morals by destroying the force of the Oath taken by our Kings at their Coronation Others says he affirm that although Laws of themselves do not bind Kings yet the Oaths of Kings at their Coronation tie them to keep all the Laws of their Kingdoms How far this is true let us but examine the Oath of the Kings of England at their Coronation the words whereof are these Art thou pleased to cause to be administred in all thy judgments indifferent and upright Justice and to use discretion with Mercy and Verity Art thou pleased that our upright Laws and Customs be observed and dost thou promise that those shall be protected and maintained by thee c. To which the King answers in the Affirmative being first demanded by the Archbishop of Canterbury Pleaseth it you to confirm and observe the Laws and Customs of the antient times granted from God by just and devout Kings unto the English Nation by Oath unto the said People especially the Laws Liberties and Customs granted unto the Clergy and Laity by the famous King Edward From this he infers That the King is not to observe all Laws but such as are upright because he finds evil Laws mention'd in the Oath of Richard the
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
to King Stephen and her Son Henry the 2d and of Henry the 7th in relation to the house of York both before he had married a Daughter of it and after her death they did the contrary in the cases of William the first and second Henry the I st Stephen John Richard the 3d Henry the 7th Mary Elizabeth and others So that for any thing I can yet find 't is equally difficult to discover the true sense of the Law of Nature that should be a guide to my Conscience whether I so far submit to the Laws of my Country to think that England alone has produced men that rightly understand it or examine the Laws and Practices of other Nations Whilst this remains undecided 't is impossible for me to know to whom I owe the obedience that is exacted from me If I were a French-man I could not tell whether I ow'd allegiance to the King of Spain Duke of Lorrain Duke of Savoy or many others descended from Daughters of the house of Valois one of whom ought to inherit if the Inheritance belongs to Females or to the house of Bourbon whose only title is founded upon the exclusion of them The like Controversies will be in all places and he that would put Mankind upon such enquiries goes about to subvert all the Governments of the World and arms every man to the destruction of his neighbour We ought to be informed when this right began If we had the Genealogy of every man from Noah and the Crowns of every Nation had since his time continued in one Line we were only to inquire into how many Kingdoms he appointed the world to be divided and how well the division we see at this day agrees with the allotment made by him But Mankind having for many Ages lain under such a vast confusion that no man pretends to know his own original except some Jews and the Princes of the house of Austria we cannot so easily arrive at the end of our work and the Scriptures making no other mention of this part of the world than what may induce us to think it was given to the Sons of Japhet we have nothing that can lead us to guess how it was to be subdivided nor to whom the several parcels were given So that the difficulties are absolutely inextricable and tho it were true that some one man had a right to every parcel that is known to us it could be of no use for that Right must necessarily perish which no man can prove nor indeed claim But as all natural Rights by Inheritance must be by Descent this Descent not being proved there can be no natural Right and all Rights being either natural created or acquired this Right to Crowns not being natural must be created or acquired or none at all There being no general Law common to all Nations creating a Right to Crowns as has bin proved by the several methods used by several Nations in the disposal of them according to which all those that we know are enjoy'd we must seek the Right concerning which we dispute from the particular Constitutions of every Nation or we shall be able to find none Acquir'd Rights are obtained as men say either by fair means or by soul that is by force or by consent such as are gained by force may be recovered by force and the extent of those that are enjoy'd by consent can only be known by the reasons for which or the conditions upon which that consent was obtain'd that is to say by the Laws of every People According to these Laws it cannot be said that there is a King in every Nation before he is crown'd John Sobietski now reigning in Poland had no relation in blood to the former Kings nor any title till he was chosen The last King of Sweden acknowledged he had none but was freely elected and the Crown being conferred upon him and the Heirs of his Body if the present King dies without Issue the right of electing a Successor returns undoubtedly to the Estates of the Country The Crown of Denmark was Elective till it was made Hereditary by an Act of the General Diet held at Copenhagen in the year 1660 and 't is impossible that a Right should otherwise accrue to a younger Brother of the house of Holstein which is derived from a younger Brother of the Counts of Oldenburgh The Roman Empire having passed through the hands of many Persons of different Nations no way relating to each other in blood was by Constantine transferred to Constantinople and after many Revolutions coming to Theodosius by birth a Spaniard was divided between his two Sons Arcadius and Honorius From thence passing to such as could gain most credit with the Soldiers the Western Empire being brought almost to nothing was restored by Charles the Great of France and continuing for some time in his descendents came to the Germans who having created several Emperors of the Houses of Suevia Saxony Bavaria and others as they pleased about three hundred years past chose Rodolphus of Austria and tho since that time they have not had any Emperor who was not of that Family yet such as were chosen had nothing to recommend them but the merits of their Ancestors their own personal Virtues or such political considerations as might arise from the power of their hereditary Countries which being joined with those of the Empire might enable them to make the better defence against the Turks But in this Line also they have had little regard to inheritance according to blood for the elder branch of the Family is that which reigns in Spain and the Empire continues in the descendents of Ferdinand younger Brother to Charles the fifth tho so unfix'd even to this time that the present Emperor Leopold was in great danger of being rejected If it be said that these are Elective Kingdoms and our Author speaks of such as are hereditary I answer that if what he says be true there can be no Elective Kingdom and every Nation has a natural Lord to whom obedience is due But if some are Elective all might have bin so if they had pleased unless it can be proved that God created some under a necessity of subjection and left to others the enjoyment of their liberty If this be so the Nations that are born under that necessity may be said to have a natural Lord who has all the power in himself before he is crowned or any part conferred on him by the consent of the people but it cannot extend to others And he who pretends a right over any Nation upon that account stands obliged to shew when and how that Nation came to be discriminated by God from others and deprived of that liberty which he in goodness had granted to the rest of mankind I confess I think there is no such Right and need no better proof than the various ways of disposing Inheritances in several Countries which not being naturally or universally
better or worse one than another cannot spring from any other root than the consent of the several Nations where they are in force and their opinions that such methods were best for them But if God have made a discrimination of people he that would thereupon ground a Title to the dominion of any one must prove that Nation to be under the curse of Slavery which for any thing I know was only denounced against Cham and 't is as hard to determine whether the sense of it be temporal spiritual or both as to tell preeisely what Nations by being only descended from him fall under the Penalties threatned If these therefore be either intirely false or impossible to be proved true there is no discrimination or not known to us and every People has a right of disposing of their Government as well as the Polanders Danes Swedes Germans and such as are or were under the Roman Empire And if any Nation has a natural Lord before he be admitted by their consent it must be by a peculiar act of their own as the Crown of France by an act of that Nation which they call the Salique Law is made hereditary to Males in a direct Line or the nearest to the direct and others in other places are otherwise disposed I might rest here with full assurance that no Disciple of Filmer can prove this of any people in the world nor give so much as the shadow of a reason to perswade us there is any such thing in any Nation or at least in those where we are concerned and presume little regard will be had to what he has said since he cannot prove of any that which he so boldly affirms of all But because good men ought to have no other object than Truth which in matters of this importance can never be made too evident I will venture to go farther and assert That as the various ways by which several Nations dispose of the succession to their respective Crowns shew they were subject to no other Law than their own which they might have made different by the same right they made it to be what it is even those who have the greatest veneration for the reigning Families and the highest regard for proximity of blood have always preferr'd the safety of the Commonwealth before the concernments of any Person or Family and have not only laid aside the nearest in blood when they were found to be notoriously vicious and wicked but when they have thought it more convenient to take others And to prove this I intend to make use of no other Examples than those I find in the Histories of Spain France and England Whilst the Goths governed Spain not above four persons in the space of three hundred years were the immediate successors of their Fathers but the Brother Cousin German or some other man of the Families of the Balthei or Amalthei was preferred before the Children of the deceased King and if it be said this was according to the Law of that Kingdom I answer that it was therefore in the power of that Nation to make Laws for themselves and consequently others have the same right One of their Kings called Wamba was deposed and made a Monk after he had reigned well many years but falling into a swound and his friends thinking him past recovery cut off his hair and put a Monk's Frock upon him that according to the superstition of those times he might die in it and the cutting off the hair being a most disgraceful thing amongst the Goths they would not restore him to his Authority Suintila another of their Kings being deprived of the Crown for his ill Government his Children and Brothers were excluded and Sisinandus crowned in his room This Kingdom being not long after overthrown by the Moors a new one arose from its ashes in the person of Don Pelayo first King of the Asturia's which increasing by degrees at last came to comprehend all Spain and so continues to this day But not troubling my self with all the deviations from the common rule in the collateral Lines of Navarr Arragon and Portugal I find that by fifteen several Instances in that one series of Kings in the Asturia's and Leon who afterwards came to be Kings of Castille it is fully proved that what respect soever they shew'd to the next in blood who by the Law were to succeed they preferred some other person as often as the supreme Law of taking care that the Nation might receive no detriment perswaded them to it Don Pelayo enjoy'd for his life the Kingdom conferred upon him by the Spaniards who with him retired into the Mountains to defend themselves against the Moors and was succeeded by his Son Favila But tho Favila left many Sons when he died Alphonso sirnamed the Chast was advanced to the Crown and they all laid aside Fruela Son to Alphonso the Catholick was for his cruelty deposed put to death and his Sons excluded Aurelio his Cousin German succeeded him and at his death Silo who married his Wives Sister was preferr'd before the Males of the Blood Royal. Alphonso sirnamed El Casto was first violently dispossess'd of the Crown by a Bastard of the Royal Family but he being dead the Nobility and People thinking Alphonso more fit to be a Monk than a King gave the Crown to Bermudo called El Diacono but Bermudo after several years resigning the Kingdom they conceived a better opinion of Alphonso and made him King Alphonso dying without issue Don Ramiro Son to Bermudo was preserred before the Nephews of Alphonso Don Ordonno fourth from Ramiro left four legitimate Sons but they being young the Estates laid them aside and made his Brother Fruela King Fruela had many Children but the same Estates gave the Crown to Alphonso the Fourth who was his Nephew Alphonso turning Monk recommended his Son Ordonno to the Estates of the Kingdom but they resused him and made his Brother Ramiro King Ordonno third Son to Ramiro dying left a Son called Bermudo but the Estates took his Brother Sancho and advanced him to the throne Henry the First being accidentally killed in his youth left only two Sisters Blanche married to Lewis Son to Philip August King of France and Berenguela married to Alphonso King of Leon. The Estates made Ferdinand Son of Berenguela the youngest Sister King excluding Blanche with her Husband and Children for being Strangers and Berenguela her self because they thought not fit that her Husband should have any part in the Government Alphonso El Savio seems to have bin a very good Prince but applying himself more to the study of Astrology than to affairs of Government his eldest Son Ferdinand de la Cerda dying and leaving his Sons Alphonso and Ferdinand very young the Nobility Clergy and People deposed him excluded his Grandchildren and gave the Crown to Don Sancho his younger Son sirnamed El Bravo thinking him more fit to command them against
described to be so by the Scriptures and to give another name to those who endeavour to advance their own glory contrary to the precept of God and the interest of mankind But unless the light of reason had bin extinguished in him he might have seen that tho no Law could be made without a supreme Power that Supremacy may be in a body consisting of many men and several orders of men If it be true which perhaps may be doubted that there have bin in the world simple Monarchies Aristocracies or Democracies legally established 't is certain that the most part of the Governments of the world and I think all that are or have bin good were mixed Part of the Power has bin confer'd upon the King or the Magistrate that represented him and part upon the Senate and People as has bin proved in relation to the Governments of the Hebrews Spartans Romans Venetians Germans and all those who live under that which is usually called the Gothic Polity If the single person participating of this divided Power dislike either the Name he bears or the Authority he has he may renounce it but no reason can be from thence drawn to the prejudice of Nations who give so much as they think consistent with their own good and reserve the rest to themselves or to such other Officers as they please to establish No man will deny that several Nations have had a right of giving power to Consuls Dictators Archons Suffetes Dukes and other Magistrates in such proportions as seemed most conducing to their own good and there must be a right in every Nation of allotting to Kings so much as they please as well as to the others unless there be a charm in the word King or in the Letters that compose it But this cannot be for there is no similitude between King Rex and Bazileus they must therefore have a right of regulating the Power of Kings as well as that of Consuls or Dictators and it had not bin more ridiculous in Fabius Scipio Camillus or Cincinnatus to assert an absolute power in himself under pretence of advancing his sovereign Majesty against the Law than for any King to do the like But as all Nations give what form they please to their Government they are also judges of the name to be imposed upon each man who is to have a part in the power and 't is as lawful for us to call him King who has a limited Authority amongst us as for the Medes or Arabs to give the same name to one who is more absolute If this be not admitted we are content to speak improperly but utterly deny that when we give the name we give any thing more than we please and had rather his Majesty should change his name than to renounce our own Rights and Liberties which he is to preserve and which we have received from God and Nature But that the folly and wickedness of our Author may not be capable of any farther aggravation he says That is skills not how he come by the power Violence therefore or fraud treachery or murder are as good as Election Donation or legal Succession 'T is in vain to examine the Laws of God or Man the rights of nature whether Children do inherit the Dignities and Magistracies of their Fathers as patrimonial Lands and Goods whether regard ought to be had to the fitness of the Person whether all should go to one or be divided amongst them or by what rule we may know who is the right Heir to the Succession and consequently what we are in conscience obliged to do Our Author tells us in short it matters not how he that has the power comes by it It has bin hitherto thought that to kill a King especially a good King was a most abominable action They who did it were thought to be incited by the worst of passions that can enter into the hearts of men and the severest punishments have bin invented to deter them from such attempts or to avenge their death upon those who should accomplish it but if our Author may be credited it must be the most commendable and glorious act that can be performed by man for besides the outward advantages that men so earnestly desire he that dos it is presently invested with the Sovereign Majesty and at the same time becomes God's Vicegerent and the father of his Country possessed of that Government which in exclusion to all other forms is only favoured by the Laws of God and Nature The only inconvenience is that all depends upon success and he that is to be the Minister of God and father of his Country if he succeed is the worst of all villains if he fail and at the best may be deprived of all by the same means he employ'd to gain it Tho a Prince should have the wisdom and virtues of Moses the valour of Joshua David and the Maccabees with the gentleness and integrity of Samuel the most foolish vitious base and detestable man in the world that kills him and seizes the power becomes his Heir and father of the People that he govern'd it skills not how he did it whether in open battel or by secret treachery in the field or in the bed by poison or by the sword The vilest slave in Israel had become the Lord 's anointed if he could have kill'd David or Solomon and found villains to place him in the Throne If this be right the world has to this day lived in darkness and the actions which have bin thought to be the most detestable are the most commendable and glorious But not troubling my self at present to decide this question I leave it to Kings to consider how much they are beholden to Filmer and his disciples who set such a price upon their heads as would render it hard to preserve their Lives one day if the Doctrines were received which they endeavour to infuse into the minds of the People and concluding this point only say that we in England know no other King than he who is so by Law nor any power in that King except that which he has by Law and tho the Roman Empire was held by the power of the Sword and Ulpian a corrupt Lawyer undertakes to say that the Prince is not obliged by the Laws yet Theodosius confessed that it was the glory of a good Emperor to acknowledg himself bound by them SECT XXII The rigour of the Law is to be temper'd by men of known integrity and judgment and not by the Prince who may be ignorant or vicious OUR Author's next shift is to place the King above the Law that he may mitigate the rigour of it without which he says The case of the Subject would be desperately miserable But this cure would prove worse than the disease Such pious fathers of the People as Caligula Nero or Domitian were not like to mitigate the rigour nor such as inherit Crowns in their infancy as the present
SECT XXVI Tho the King may be entrusted with the power of chusing Judges yet that by which they act is from the Law I Confess that no Law can be so perfect to provide exactly for every case that may fall out so as to leave nothing to the discretion of the Judges who in some measure are to interpret them But that Laws or Customs are ever few or that the paucity is the reason that they cannot give special rules or that Judges do resort to those principles or Common Law Axioms whereupon former judgments in cases something alike have bin given by former Judges who all receive their Authority from the King in his right to give Sentence I utterly deny and affirm 1. That in many places and particularly in England the Laws are so many that the number of them has introduced an uncertainty and confusion which is both dangerous and troublesom and the infinite variety of adjudged cases thwarting and contradicting each other has render'd these difficulties inextricable Tacitus imputes a great part of the miseries suffer'd by the Romans in his time to this abuse and tells us that the Laws grew to be innumerable in the worst and most corrupt state of things and that Justice was overthrown by them By the same means in France Italy and other places where the Civil Law is rendred municipal Judgments are in a manner arbitrary and tho the intention of our Laws be just and good they are so numerous and the volumes of our Statutes with the interpretations and adjudged Cases so vast that hardly any thing is so clear and fixed but men of wit and learning may find what will serve for a pretence to justify almost any judgment they have a mind to give Whereas the Laws of Moses as to the Judicial part being short and few Judgments were easy and certain and in Switzerland Sweden and some parts of Denmark the whole volume that contains them may be read in few hours and by that means no injustice can be done which is not immediately made evident 2. Axioms are not rightly grounded upon judged Cases but Cases are to be judged according to Axioms the certain is not proved by the uncertain but the uncertain by the certain and every thing is to be esteemed uncertain till it be proved to be certain Axioms in Law are as in Mathematicks evident to common sense and nothing is to be taken for an Axiom that is not so Euclid dos not prove his Axioms by his Propositions but his Propositions which are abstruse by such Axioms as are evident to all The Axioms of our Law do not receive their Authority from Coke or Hales but Coke and Hales deserve praise for giving judgment according to such as are undeniably true 3. The Judges receive their Commissions from the King and perhaps it may be said that the Custom of naming them is grounded upon a right with which he is entrusted but their power is from the Law as that of the King also is For he who has none originally in himself can give none unless it be first conserred upon him I know not how he can well perform his Oath to govern according to Law unless he execute the power with which he is entrusted in naming those men to be Judges whom in his conscience and by the advice of his Council he thinks the best and ablest to perform that Office But both he and they are to learn their duty from that Law by which they are and which allots to every one his proper work As the Law intends that men should be made Judges for their integrity and knowledg in the Law and that it ought not to be imagined that the King will break his trust by chusing such as are not so till the violation be evident nothing is more reasonable than to intend that the Judges so qualified should instruct the King in matters of Law But that he who may be a child over aged or otherwise ignorant and uncapable should instruct the Judges is equally absurd as for a blind man to be a guide to those who have the best eyes and so abhorrent from the meaning of the Law that the Judges as I said before are sworn to do justice according to the Laws without any regard to the King's words letters or commands If they are therefore to act according to a set rule from which they may not depart what command soever they receive they do not act by a power from him but by one that is above both This is commonly confess'd and tho some Judges have bin found in several ages who in hopes of reward and preferment have made little account of their Oath yet the success that many of them have had may reasonably deter others from following their example and if there are not more instances in this kind no better reason can be given than that Nations do frequently fail by being too remiss in asserting their own rights or punishing offenders and hardly ever err on the severer side 4. Judgments are variously given in several States and Kingdoms but he who would find one where they lie in the breast of the King must go at least as far as Marocco Nay the Ambassador who was lately here from that place denied that they were absolutely in him However 't is certain that in England according to the Great Charter Judgments are passed by equals no man can be imprison'd disseiz'd of his Freehold depriv'd of Life or Limb unless by the sentence of his Peers The Kings of Judah did judg and were judged and the Judgments they gave were in and with the Sanhedrim In England the Kings do not judg but are judged and Bracton says That in receiving justice the King is equal to another man which could not be if judgments were given by him and he were exempted from the judgment of all by that Law which has put all judgments into the hands of the People This power is executed by them in grand or petty Juries and the Judges are assistants to them in explaining the difficult points of the Law in which 't is presumed they should be learned The strength of every judgment consists in the verdict of these Juries which the Judges do not give but pronounce or declare and the same Law that makes good a verdict given contrary to the advice or direction of the Judges exposes them to the utmost penalties if upon their own heads or a command from the King they should presume to give a Sentence without or contrary to a Verdict and no pretensions to a power of interpreting the Law can exempt them if they break it The power also with which the Judges are entrusted is but of a moderate extent and to be executed bona fide Prevarications are capital as they proved to Tresilian Empson Dudley and many others Nay even in special Verdicts the Judges are only assistants to the Juries who find it specially
is instituted for the good of those that are under it 'T is therefore for them that he enjoys it and it can no otherwise subsist than in concurrence with that end He also yields that the safety of the People is the supreme Law The right therefore that the King has must be conformable and subordinate to it If any one therefore set up an interest in himself that is not so he breaks this supreme Law he doth not live and reign for his People but for himself and by departing from the end of his institution destroys it and if Aristotle to whom our Author seems to have a great deference deserves credit such a one ceases to be a King and becomes a Tyrant he who ought to have bin the best of men is turned into the worst and he who is recommended to us under the name of a Father becomes a publick Enemy to the People The question therefore is not what is good for the King but what is good for the People and he can have no right repugnant to them Bracton is not more gentle The King says he is obliged by his Oath to the utmost of his power to preserve the Church and the Christian World in peace to hinder rapine and all manner of iniquity to cause justice and mercy to be observed He has no power but from the Law that only is to be taken for Law quod recté fuerit definitum he is therefore to cause justice to be done according to that rule and not to pervert it for his own pleasure profit or glory He may chuse Judges also not such as will be subservient to his will but Viros sapientes timentes Deum in quibus est veritas eloquiorum qui oderunt avaritiam Which proves that Kings and their Officers do not possess their places for themselves but for the People and must be such as are fit and able to perform the duties they undertake The mischievous fury of those who assume a power above their abilities is well represented by the known fable of Phaeton they think they desire fine things for themselves when they seek their own ruin In conformity to this the same Bracton says that If any man who is unskilful assume the seat of justice he falls as from a Precipice c. and 't is the same thing as if a sword be put into the hand of a mad man which cannot but affect the King as well as those who are chosen by him If he neglect the functions of his Office he dos unjustly and becomes the Vicegerent of the Devil for he is the Minister of him whose works he dos This is Bracton's opinion but desiring to be a more gentle Interpreter of the Law I only wish that Princes would consider the end of their institution endeavour to perform it measure their own abilities content themselves with that power which the Laws allow and abhor those Wretches who by flattery and lies endeavour to work upon their frailest Passions by which means they draw upon them that hatred of the People which frequently brings them to destruction Tho Ulpian's words Princeps legibus non tenetur be granted to have bin true in fact with relation to the Roman Empire in the time when he lived yet they can conclude nothing against us The Liberty of Rome had bin overthrown long before by the power of the Sword and the Law render'd subservient to the will of the Usurpers They were not Englishmen but Romans who lost the Battels of Pharsalia and Philippi The Carcases of their Senators not ours were exposed to the Wolves and Vulturs Pompeius Scipio Lentulus Afranius Petreius Cato Cassius and Brutus were defenders of the Roman not the English Liberty and that of their Country not ours could only be lost by their defeat Those who were destroy'd by the Proscriptions left Rome not England to be enslaved If the best had gained the victory it could have bin no advantage to us and their overthrow can be no prejudice Every Nation is to take care of their own Laws and whether any one has had the Wisdom Virtue Fortune and Power to defend them or not concerns only themselves The Examples of great and good men acting freely deserve consideration but they only perish by the ill success of their designs and whatsoever is afterwards done by their subdued Posterity ought to have no other effect upon the rest of the world than to admonish them so to join in the defence of their Liberties as never to be brought under the necessity of acting by the command of one to the prejudice of themselves and their Country If the Roman greatness perswade us to put an extraordinary value upon what passed among them we ought rather to examin what they did said or thought when they enjoy'd that Liberty which was the Mother and Nurse of their Virtue than what they suffer'd or were forc'd to say when they were fallen under that Slavery which produced all manner of corruption and made them the most base and miserable People of the world For what concerns us the Actions of our Ancestors resemble those of the antient rather than the later Romans tho our Government be not the same with theirs in form yet it is in principle and if we are not degenerated we shall rather desire to imitate the Romans in the time of their virtue glory power and felicity than what they were in that of their slavery vice shame and misery In the best times when the Laws were more powerful than the commands of men fraud was accounted a crime so detestable as not to be imputed to any but Slaves and he who had sought a power above the Law under colour of interpreting it would have bin exposed to scorn or greater punishments if any can be greater than the just scorn of the best men And as neither the Romans nor any people of the world have better defended their Liberties than the English Nation when any attempt has bin made to oppress them by force they ought to be no less careful to preserve them from the more dangerous efforts of fraud and falshood Our Ancestors were certainly in a low condition in the time of William the First Many of their best men had perished in the Civil Wars or with Harold their valour was great but rough and void of skill The Normans by frequent Expeditions into France Italy and Spain had added subtilty to the boisterous violence of their native climate William had engaged his Faith but broke it and turned the power with which he was entrusted to the ruin of those that had trusted him He destroy'd many worthy men carried others into Normandy and thought himself Master of all He was crafty bold and elated with Victory but the resolution of a brave People was invincible When their Laws and Liberties were in danger they resolved to die or to defend them and made him see he could no otherwise preserve his Crown
ready to use it and their extravagances having bin often chastised by Law sufficiently proves that their power is not derived from a higher original than the Law of their own Countries If it were true that the answer sometimes given by Kings to Bills presented for their Assent did as our Author says amount to a denial it could only shew that they have a negative voice upon that which is agreed by the Parliament and is far from a power of acting by themselves being only a check upon the other parts of the Government But indeed it is no more than an elusion and he that dos by art obliquely elude confesses he has not a right absolutely to refuse 'T is natural to Kings especially to the worst to scrue up their Authority to the height and nothing can more evidently prove the defect of it than the necessity of having recourse to such pitiful evasions when they are unwilling to do that which is required But if I should grant that the words import a denial and that notwithstanding those of the Coronation Oath Quas vulgus elegerit they might deny no more could be inferred from thence than that they are entrusted with a power equal in that point to that of either House and cannot be supreme in our Author's sense unless there were in the same State at the same time three distinct supreme and absolute Powers which is absurd His cases relating to the proceedings of the Star-Chamber and Council-Table do only prove that some Kings have encroached upon the rights of the Nation and bin suffer'd till their excesses growing to be extreme they turn'd to the ruin of the Ministers that advised them and sometimes of the Kings themselves But the jurisdiction of the Council having bin regulated by the Statute of the 17 Car. 1. and the Star-Chamber more lately abolished they are nothing to our dispute Such as our Author usually impute to treason and rebellion the changes that upon such occasions have ensued but all impartial men do not only justify them but acknowledg that all the Crowns of Europe are at this day enjoy'd by no other title than such acts solemnly performed by the respective Nations who either disliking the person that pretended to the Crown tho next in blood or the government of the present possessor have thought fit to prefer another person or family They also say that as no Government can be so perfect but some defect may be originally in it or afterwards introduced none can subsist unless they be from time to time reduced to their first integrity by such an exertion of the power of those for whose sake they were instituted as may plainly shew them to be subject to no power under Heaven but may do whatever appears to be for their own good And as the safety of all Nations consists in rightly placing and measuring this power such have bin found always to prosper who have given it to those from whom usurpations were least to be feared who have bin least subject to be awed cheated or corrupted and who having the greatest interest in the Nation were most concerned to preserve its power liberty and welfare This is the greatest trust that can be reposed in men This power was by the Spartans given to the Ephori and the Senat of twenty eight in Venice to that which they call Concilio de Pregadi in Germany Spain France Sweedland Denmark Poland Hungary Bohemia Scotland England and generally all the Nations that have lived under the Gothick Polity it has bin in their General Assemblies under the names of Diets Cortez Parliaments Senats and the like But in what hands soever it is the power of making abrogating changing correcting and interpreting Laws has bin in the same Kings have bin rejected or deposed the Succession of the Crown settled regulated or changed and I defy any man to shew me one King amongst all the Nations abovementioned that has any right to the Crown he wears unless such acts are good If this power be not well placed or rightly proportioned to that which is given to other Magistrates the State must necessarily fall into great disorders or the most violent and dangerous means must be frequently used to preserve their Liberty Sparta and Venice have rarely bin put to that trouble because the Senats were so much above the Kings and Dukes in power that they could without difficulty bring them to reason The Gothick Kings in Spain never ventur'd to dispute with the Nobility and Witza and Rodrigo exposed the Kingdom as a prey to the Moors rather by weakning it through the neglect of Military discipline joined to their own ignorance and cowardice and by evil example bringing the youth to resemble them in lewdness and baseness than by establishing in themselves a power above the Law But in England our Ancestors who seem to have had some such thing in their eye as balancing the powers by a fatal mistake placed usually so much in the hands of the King that whensoever he happened to be bad his extravagances could not be repress'd without great danger And as this has in several ages cost the Nation a vast proportion of generous blood so 't is the cause of our present difficulties and threatens us with more but can never deprive us of the rights we inherit from our fathers SECT XXVIII The English Nation has always bin governed by it self or its Representatives HAVING proved that the People of England have never acknowledged any other human Law than their own and that our Parliaments having the power of making and abrogating Laws they only can interpret them and decide hard cases it plainly appears there can be no truth in our Author's assertion that the King is the Author Corrector and Moderator of both Statute and Common Law and nothing can be more frivolous than what he adds that neither of them can be a diminution of that natural power which Kings have over their People as fathers in as much as the differences between paternal and monarchical Power as he asserts it are vast and irreconcileable in principle and practice as I have proved at large in the former parts of this Work But lest we should be too proud of the honour he is pleased to do to our Parliaments by making use of their Authority he says We are first to remember that till the Conquest which name for the glory of our Nation he gives to the coming in of the Normans there could be no Parliament assembled of the General States because we cannot learn that until those days it was intirely united in one Secondly he doubts Whether the Parliament in the time of the Saxons were composed of the Nobility and Clergy or whether the Commons were also called but concludes there could be no Knights of any Shires because there were no Shires Thirdly That Henry the first caused the Commons first to assemble Knights and Burgesses of their own chusing and would make this to be an act
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
most regular Commonwealths that ever were in the world And it can with no more reason be pretended that the Goths received their privileges from Alan or Theodoric the Francs from Pharamond or Meroveus and the English from Ina or Ethelred than that the liberty of Athens was the gift of Themistocles or Pericles that the Empire of Rome proceeded from the liberality of Brutus or Valerius and that the Commonwealth of Venice at this day subsists by the favour of the Contarini or Moresini which must reduce us to matter of right since that of fact void of right can signify nothing SECT XXXII The powers of Kings are so various according to the Constitutions of several States that no consequence can be drawn to the prejudice or advantage of any one merely from the name IN opposition to what is above said some alledg the name of King as if there were a charm in the word and our Author seems to put more weight upon it than in the reasons he brings to support his cause But that we may see there is no efficacy in it and that it conveys no other right than what particular Nations may annex to it we are to consider 1. That the most absolute Princes that are or have bin in the world never had the name of King whereas it has bin frequently given to those whose powers have bin very much restrained The Cesars were never called Kings till the sixth age of Christianity the Califs and Soldan of Egypt and Babylon the Great Turk the Cham of Tartary or the Great Mogol never took that name or any other of the same signification The Czar of Moscovy has it not tho he is as absolute a Monarch and his People as miserable slaves as any in the world On the other side the chief Magistrates of Rome and Athens for some time those of Sparta Arragon Sweden Denmark and England who could do nothing but by Law have bin called Kings This may be enough to shew that a name being no way essential what title soever is given to the chief Magistrate he can have no other power than the Laws and Customs of his Country do give or the People confer upon him 2. The names of Magistrates are often changed tho the power continue to be the same and the powers are sometimes alter'd tho the name remain When Octavius Cesar by the force of a mad corrupted Soldiery had overthrown all Law and Right he took no other title in relation to military Affairs than that of Imperator which in the time of liberty was by the Armies often given to Pretors and Consuls In Civil matters he was as he pretended content with the power of Tribun and the like was observed in his Successor who to new invented Usurpations gave old and approved names On the other side those titles which have bin render'd odious and execrable by the violent exercise of an absolute power are sometimes made popular by moderat elimitations as in Germany where tho the Monarchy seem to be as well temper'd as any the Princes retain the same names of Imperator Cesar and Augustus as those had done who by the excess of their rage and fury had desolated and corrupted the best part of world Sometimes the name is changed tho the power in all respects continue to be the same The Lords of Castille had for many Ages no other title than that of Count and when the Nobility and People thought good they changed it to that of King without any addition to the power The Sovereign Magistrate in Poland was called Duke till within the last two hundred years when they gave the title of King to one of the Jagellan Family which title has continued to this day tho without any change in the nature of the Magistracy And I presume no wise man will think that if the Venetians should give the name of King to their Duke it could confer any other power upon him than he has already unless more should be conferr'd by the Authority of the Great Council 3. The same names which in some places denote the supreme Magistracy in others are subordinate or merely titular In England France and Spain Dukes and Earls are Subjects in Germany the Electors and Princes who are called by those names are little less than Sovereigns and the Dukes of Savoy Tuscany Moscovy and others acknowledg no Superior as well as those of Poland and Castille had none when they went under those titles The same may be said of Kings Some are subject to a foreign power as divers of them were subject to the Persian and Babylonian Monarchs who for that reason were called the Kings of Kings Some also are tributaries and when the Spaniards first landed in America the great Kings of Mexico and Peru had many others under them Threescore and ten Kings gathered up meat under the table of Adonibezek The Romans had many Kings depending upon them Herod and those of his race were of this number and the dispute between him and his Sons Aristobulus and Alexander was to be determined by them neither durst he decide the matter till it was referred to him But a right of Appeal did still remain as appears by the case of St. Paul when Agrippa was King The Kings of Mauritania from the time of Massinissa were under the like dependence Jugurtha went to Rome to justify himself for the death of Micipsa Juba was commanded by the Roman Magistrates Scipio Petreius and Afranius another Juba was made King of the same Country by Augustus and Tiridates of Armenia by Nero and infinite examples of this nature may be alledged Moreover their powers are variously regulated according to the variety of tempers in Nations and Ages Some have restrained the powers that by experience were found to be exorbitant others have dissolved the bonds that were laid upon them and Laws relating to the institution abrogation enlargement or restriction of the regal Power would be utterly insignificant if this could not be done But such Laws are of no effect in any other Country than where they are made The lives of the Spartans did not depend upon the will of Agesilaus or Leonidas because Nabuchodonosor could kill or save whom he pleased and tho the King of Marocco may stab his Subjects throw them to the Lions or hang them upon tenterhooks yet a King of Poland would probably be called to a severe account if he should unjustly kill a single man SECT XXXIII The Liberty of a People is the gift of God and Nature IF any man ask how Nations come to have the power of doing these things I answer that Liberty being only an exemption from the dominion of another the question ought not to be how a Nation can come to be free but how a man comes to have a dominion over it for till the right of Dominion be proved and justified Liberty subsists as arising from the Nature and Being of a man Tertullian speaking of the
of late bin given to Monk and his honourable Dutchess New phrases have bin invented to please Princes or the sense of the old perverted as has happen'd to that of Le Roy s'avisera And that which was no more than a Liberty to consult with the Lords upon a Bill presented by the Commons is by some men now taken for a Right inherent in the King of denying such Bills as may be offer'd to him by the Lords and Commons tho the Coronation Oath oblige him to hold keep and defend the just Laws and Customs quas vulgus elegerit And if a stop be not put to this exorbitant abuse the words still remaining in Acts of Parliament which shew that their Acts are our Laws may perhaps be also abolished But tho this should come to pass by the slackness of the Lords and Commons it could neither create a new Right in the King nor diminish that of the People But it might give a better colour to those who are Enemies to their Country to render the Power of the Crown arbitrary than any thing that is yet among us SECT XXXV The Authority given by our Law to the Acts performed by a King de facto detract nothing from the peoples right of creating whom they please THEY who have more regard to the prevailing Power than to Right and lay great weight upon the Statute of Henry the seventh which authorizes the Acts of a King de facto seem not to consider that thereby they destroy all right of Inheritance that he only is King de facto who is received by the People and that this reception could neither be of any value in it self nor be made valid by a Statute unless the People and their Representatives who make the Statute had in themselves the power of receiving authorizing and creating whom they please For he is not King de facto who calls himself so as Perkin or Simnel but he who by the consent of the Nation is possess'd of the Regal Power If there were such a thing in nature as a natural Lord over every Country and that the right must go by descent it would be impossible for any other man to acquire it or for the people to confer it upon him and to give the Authority to the Acts of one who neither is nor can be a King which belongs only to him who has the right inherent in himself and inseparable from him Neither can it be denied that the same power which gives the validity to such Acts as are performed by one who is not a King that belongs to those of a true King may also make him King for the essence of a King consists in the validity of his Acts. And 't is equally absurd for one to pretend to be a King whose Acts as King are not valid as that his own can be valid if those of another are for then the same indivisible Right which our Author and those of his principles assert to be inseparable from the Person would be at the same time exercised and enjoyed by two distinct and contrary Powers Moreover it may be observed that this Statute was made after frequent and bloody Wars concerning Titles to the Crown and whether the cause were good or bad those who were overcome were not only subject to be killed in the field but afterwards to be prosecuted as Traitors under the colour of Law He who gained the Victory was always set up to be King by those of his party and he never failed to proceed against his Enemies as Rebels This introduced a horrid series of the most destructive mischiefs The fortune of War varied often and I think it may be said that there were few if any great Families in England that were not either destroy'd or at least so far shaken as to lose their Chiefs and many considerable branches of them And experience taught that instead of gaining any advantage to the Publick in point of Government he for whom they fought seldom proved better than his Enemy They saw that the like might again happen tho the title of the reigning King should be as clear as descent of blood could make it This brought things into an uneasy posture and 't is not strange that both the Nobility and Commonalty should be weary of it No Law could prevent the dangers of battel for he that had followers and would venture himself might bring them to such a decision as was only in the hand of God But thinking no more could justly be required to the full performance of their Duty to the King than to expose themselves to the hazard of battel for him and not being answerable for the success they would not have that Law which they endeavour'd to support turned to their destruction by their Enemies who might come to be the interpreters of it But as they could be exempted from this danger only by their own Laws which could authorize the Acts of a King without a Title and justify them for acting under him 't is evident that the power of the Law was in their hands and that the acts of the person who enjoyed the Crown were of no value in themselves The Law had bin impertinent if it could have bin done without Law and the Intervention of the Parliament useless if the Kings de facto could have given authority to their own Acts. But if the Parliament could make that to have the effect of Law which was not Law and exempt those that acted according to it from the penalties of the Law and give the same force to the Acts of one who is not King as of one who is they cannot but have a power of making him to be King who is not so that is to say all depends intirely upon their Authority Besides he is not King who assumes the title to himself or is set up by a corrupt party but he who according to the usages required in the case is made King If these are wanting he is neither de facto nor de jure but Tyrannus sine titulo Nevertheless this very man if he comes to be received by the People and placed in the Throne he is thereby made King de facto His Acts are valid in Law the same service is due to him as to any other they who render it are in the same manner protected by the Law that is to say he is truly King If our Author therefore do allow such to be Kings he must confess that power to be good which makes them so when they have no right in themselves If he deny it he must not only deny that there is any such thing as a King de facto which the Statute acknowledges but that we ever had any King in England for we never had any other than such as I have proved before By the same means he will so unravel all the Law that no man shall know what he has or what he ought to do or avoid and will find no
his hands it would neither bring inconvenience or danger on the present King He can with patience expect that nature should take her course and would neither anticipate nor secure his entrance into the possession of the power by taking one day from the life of his Brother Tho the Papists know that like a true Son of their Church he would prefer the advancement of their Religion before all other considerations and that one stab with a Dagger or a dose of Poison would put all under his feet not one man would be found among them to give it The Assassins were Mahometans not pupils of the honest Jesuits nor ever employ'd by them These things being certain all our concernments would be secure if instead of the foolish Statutes and antiquated Customs on which our Ancestors and we have hitherto doted we may be troubled with no Law but the King's will and a Proclamation may be taken for a sufficient declaration of it We shall by this means be delivered from that Liberty with a mischief in which our mistaken Nation seems so much to delight This phrase is so new and so peculiar to our Author that it deserves to be written upon his Tomb. We have heard of Tyranny with a mischief Slavery and Bondage with a mischief and they have bin denounced by God against wicked and perverse Nations as mischiefs comprehending all that is most to be abhorr'd and dreaded in the world But Filmer informs us that Liberty which all wise and good men have in all ages esteemed to be the most valuable and glorious privilege of mankind is a mischief If he deserve credit Moses Joshua Gideon Sampson and Samuel with others like them were enemies to their Country in depriving the people of the advantages they enjoy'd under the paternal care of Pharaoh Adonibezek Eglon Jabin and other Kings of the neighbouring Nations and restoring them to that Liberty with a mischief which he had promised to them The Israelites were happy under the power of Tyrants whose Proclamations were Laws and they ought to have bin thankful to God for that condition and not for the deliverances he wrought by the hands of his Servants Subjection to the will of a man is happiness Liberty is a mischief But this is so abominably wicked and detestable that it can deserve no answer SECT XLIV No People that is not free can substitute Delegates HOW full soever the Power of any person or people may be he or they are obliged to give only so much to their Delegates as seems convenient to themselves or conducing to the ends they desire to attain but the Delegate can have none except what is conferred upon him by his Principal If theresore the Knights Citizens and Burgesses sent by the People of England to serve in Parliament have a Power it must be more perfectly and fully in those that send them But as was proved in the last Section Proclamations and other significations of the King's pleasure are not Laws to us They are to be regulated by the Law not the Law by them They are to be considered only so far as they are conformable to the Law srom which they receive all the strength that is in them and can confer none upon it We know no Laws but our own Statutes and those immemorial Customs established by the consent of the Nation which may be and often are changed by us The Legislative Power therefore that is exercised by the Parliament cannot be conferred by the Writ of Summons but must be essentially and radically in the People from whom their Delegates and Representatives have all that they have But says our Author They must only chuse and trust those whom they chuse to do what they list and that is as much liberty as many of us deserve for our irregular Elections of Burgesses This is ingeniously concluded I take what Servant I please and when I have taken him I must suffer him to do what he pleases But from whence should this necessity arise Why may not I take one to be my Groom another to be my Cook and keep them both to the Offices for which I took them What Law dos herein restrain my Right And if I am free in my private capacity to regulate my particular affairs according to my own discretion and to allot to each Servant his proper work why have not I with my Associates the Freemen of England the like liberty of directing and limiting the Powers of the Servants we employ in our publick Affairs Our Author gives us reasons proportionable to his judgment This were liberty with a mischief and that of chusing only is as much as many of us deserve I have already proved that as far as our Histories reach we have had no Princes or Magistrates but such as we have made and they have had no other power than what we have conferred upon them They cannot be the judges of our merit who have no power but what we gave them thrô an opinion they did or might deserve it They may distribute in parcels to particulars that with which they are entrusted in the gross But 't is impossible that the Publick should depend absolutely upon those who are nothing above other men except what they are made to be for and by the Publick The restrictions therefore of the peoples Liberty must be from themselves or there can be none Nevertheless I believe that the Powers of every County City and Borough of England are regulated by the general Law to which they have all consented and by which they are all made Members of one political Body This obliges them to proceed with their Delegates in a manner different from that which is used in the United Netherlands or in Switserland Amongst these every Province City or Canton making a distinct body independent from any other and exercising the sovereign Power within it self looks upon the rest as Allies to whom they are bound only by such Acts as they themselves have made and when any new thing not comprehended in them happens to arise they oblige their Delegates to give them an account of it and retain the power of determining those matters in themselves 'T is not so amongst us Every County dos not make a distinct Body having in it self a sovereign Power but is a Member of that great Body which comprehends the whole Nation 'T is not therefore for Kent or Sussex Lewis or Maidstone but for the whole Nation that the Members chosen in those places are sent to serve in Parliament and tho it be fit for them as Friends and Neighbours so far as may be to hearken to the opinions of the Electors for the information of their Judgments and to the end that what they shall say may be of more weight when every one is known not to speak his own thoughts only but those of a great number of men yet they are not strictly and properly obliged to give account of their actions to any
manifest this by the words Be it enacted by the Lords Spiritual and Temporal and Commons in Parliament assembled and by Authority of the same But King James says Filmer in his Law of free Monarchy affirms the contrary and it may be so yet that is nothing to us No man doubts that he desired it might be so in England but it dos not from thence appear that it is so The Law of a free Monarchy is nothing to us for that Monarchy is not free which is regulated by a Law not to be broken without the guilt of Perjury as he himself confessed in relation to ours As to the words cited from Hooker I can find no hurt in them To draw up the form of a good Law is a matter of invention and judgment but it receives the force of a Law from the power that enacts it We have no other reason for the paiment of Excise or Customs than that the Parliament has granted those Revenues to the King to defray the publick Charges Whatever therefore King James was pleased to say in his Books or in those written for him we do not so much as know that the killing of a King is Treason or to be punished with death otherwise than as it is enacted by Parliament and it was not always so for in the time of Ethelstan the Estimates of Lives were agreed in Parliament and that of a King valued at thirty thousand Thrymsae And if that Law had not bin alter'd by the Parliament it must have bin in force at this day It had bin in vain for a King to say he would have it otherwise for he is not created to make Laws but to govern according to such as are made and sworn to assent to such as shall be proposed He who thinks the Crown not worth accepting on these conditions may refuse it The words Le Roy le veult are only a pattern of the French fashions upon which some Kings have laid great stress and would no doubt have bin glad to introduce Car tel est nostre plaisir but that may prove a difficult matter Nay in France it self where that Stile and all the ranting expressions that please the vainest of men are in mode no Edict has the power of a Law till it be registred in Parliament This is not a mere ceremony as some pretend but all that is essential to a Law Nothing has bin more common than for those Parliaments to refuse Edicts sent to them by the King When John Chastel had at the instigation of the Jesuits stabb'd Henry the fourth in the Mouth and that Order had designed or executed many other execrable crimes they were banished out of the Kingdom by an Arrest of the Parliament of Paris Some other Parliaments registred the same but those of Tholouse and Bordeaux absolutely refused and notwithstanding all that the King could do the Jesuits continued at Tournon and many other places within their Precincts till the Arrest was revoked These proceedings are so displeasing to the Court that the most violent ways have bin often used to abolish them About the year 1650 Seguier then Chancellor of France was sent with a great number of Soldiers to oblige the Parliament of Paris to pass some Edicts upon which they had hesitated but he was so far from accomplishing his design that the People rose against him and he thought himself happy that he escaped with his Life If the Parliaments do not in all parts of the Kingdom continue in the Liberty of approving or rejecting all Edicts the Law is not altered but oppressed by the violence of the Sword And the Prince of Condé who was principally employ'd to do that work may as I suppose have had leisure to reflect upon those Actions and cannot but find reason to conclude that his excellent valour and conduct was used in a most noble exploit equally beneficial to his Country and himself However those who are skilled in the Laws of that Nation do still affirm that all publick Acts which are not duly examined and registred are void in themselves and can be of no force longer than the miserable People lies under the violence of Oppression which is all that could reasonably be said if a Pirat had the same power over them But whether the French have willingly offer'd their ears to be bor'd or have bin subdued by force it concerns us not Our Liberties depend not upon their will virtue or fortune how wretched and shameful soever their Slavery may be the evil is only to themselves We are to consider no human Laws but our own and if we have the spirit of our Ancestors we shall maintain them and die as free as they left us Le Roy le veut tho written in great Letters or pronounced in the most tragical manner can signify no more than that the King in performance of his Oath dos assent to such Laws as the Lords and Commons have agreed Without prejudice to themselves and their Liberties a People may suffer the King to advise with his Council upon what they propose Two eyes see more than one and human judgment is subject to errors Tho the Parliament consist of the most eminent men of the Nation yet when they intend good they may be mistaken They may sefely put a check upon themselves that they may farther consider the most important matters and correct the errors that may have bin committed if the King's Council do discover them but he can speak only by the advice of his Council and every man of them is with his head to answer for the advices he gives If the Parliament has not bin satisfied with the reasons given against any Law that they offer'd it has frequently pass'd and if they have bin satisfied 't was not the King but they that laid it aside He that is of another opinion may try whether Le Roy le veut can give the force of a Law to any thing conceived by the King his Council or any other than the Parliament But if no wise man will affirm that he can do it or deny that by his Oath he is obliged to assent to those that come from them he can neither have the Legislative power in himself nor any other part in it than what is necessarily to be performed by him as the Law prescribes I know not what our Author means by saying Le Roy le veut is the interpretative phrase pronounced at the passing of every Act of Parliament For if there be difficulty in any of them those words do no way remove it But the following part of the paragraph better deserves to be observed It was says he the antient custom for á long time until the days of Henry the fifth for the Kings when any Bill was brought to them that had passed both Houses to take and pick out what they liked not and so much as they chose was enacted as a Law But the custom of the
assert that which is agreeable to divine or human Story as to matter of fact and as little conformable to common sense It does not only appear contrary to his general Proposition That all Governments have not begun with the Paternal power but we do not find that any ever did They who according to his rules should have bin Lords of the whole Earth lived and died private men whilst the wildest and most boisterous of their Children commanded the greatest part of the then inhabited World not excepting even those Countries where they spent and ended their days and instead of entring upon the Government by the right of Fathers or managing it as Fathers they did by the most outragious injustice usurp a violent Domination over their Brethren and Fathers It may easily be imagined what the Right is that could be thus acquired and transmitted to their Successors Nevertheless our Author says All Kings either are or ought to be reputed next Heirs c. But why reputed if they were not How could any of the accursed race of Ham be reputed Father of Noah or Shem to whom he was to be a Servant How could Nimrod and Ninus be reputed Fathers of Ham and of those whom they ought to have obeyed Can reason oblige me to believe that which I know to be false Can a Lie that is hateful to God and good men not only be excused but enjoyned when as he will perhaps say it is for the King's Service Can I serve two Masters or without the most unpardonable injustice repute him to be my Father who is not my Father and pay the obedience that is due to him who did beget and educate me to one from whom I never received any good If this be so absurd that no man dares affirm it in the person of any 't is as preposterous in relation to his Heirs For Nimrod the first King could be Heir to no man as King and could transmit to no man a Right which he had not If it was ridiculous and abominable to say that he was Father of Chush Ham Shem and Noah 't is as ridiculous to say he had the Right of Father if he was not their Father or that his Successors inherited it from him if he never had it If there be any way through this it must have accrued to him by the extirpation of all his Elders and their Races so as he who will assert this pretended Right to have been in the Babylonian Kings must assert that Noah Shem Japhet Ham Chush and all Nimrod's elder Brothers with all their Descendents were utterly extirpated before he began to reign and all Mankind to be descended from him This must be if Nimrod as the Scripture says was the first that became mighty in the Earth unless men might be Kings without having more Power than others for Chush Ham and Noah were his Elders and Progenitors in the direct Line and all the Sons of Shem and Japhet and their Descendents in the Collaterals were to be preferred before him and he could have no Right at all that was not directly contrary to those Principles which our Author says are grounded upon the eternal and indispensable Laws of God and Nature The like may be said of the seventy two Heads of Colonies which following as I suppose Sir Walter Raleigh he says went out to people the Earth and whom he calls Kings for according to the same Rule Noah Shem and Japhet with their Descendents could not be of the number so that neither Nimrod nor the others that established the Kingdoms of the World and from whence he thinks all the rest to be derived could have any thing of Justice in them unless it were from a Root altogether inconsistent with his Principles They are therefore false or the Establishments before mentioned could have no Right If they had none they cannot be reputed to have any for no man can think that to be true which he knows to be false having none they could transmit none to their Heirs and Successors And if we are to believe that all the Kingdoms of the Earth are established upon this Paternal Right it must be proved that all those who in birth ought to have bin preferred before Nimrod and the seventy two were extirpated or that the first and true Heir of Noah did afterwards abolish all these unjust Usurpations and making himself Master of the whole left it to his Heirs in whom it continues to this day When this is done I will acknowledg the Foundation to be well laid and admit of all that can be rightly built upon it but if this fails all fails The poison of the Root continues in the Branches If the right Heir be not in possession he is not the right who is in possession If the true Heir be known he ought to be restored to his Right If he be not known the Right must perish That cannot be said to belong to any man if no man knows to whom it belongs and can have no more effect than if it were not This conclusion will continue unmoveable tho the division into seventy two Kingdoms were allowed which cannot be without destroying the Paternal Power or subjecting it to be subdivided into as many parcels as there are men which destroys Regality for the same thing may be required in every one of the distinct Kingdoms and others derived from them We must know who was that true Heir of Noah that recovered all How when and to whom he gave the several Portions and that every one of them do continue in the possession of those who by this prerogative of birth are raised above the rest of mankind and if they are not 't is an impious folly to repute them so to the prejudice of those that are and if they do not appear to the prejudice of all mankind who being equal are thereby made subject to them For as Truth is the Rule of Justice there can be none when he is reputed superior to all who is certainly inferior to In this place two Pages are wanting in the Original Manuscript degenerated from that Reason which distinguisheth men from beasts Tho it may be fit to use some Ceremonies before a man be admitted to practise Physick or set up a Trade 't is his own skill that makes him a Doctor or an Artificer and others do but declare it An Ass will not leave his stupidity tho he be covered with Scarlet and he that is by nature a Slave will be so still tho a Crown be put upon his Head and 't is hard to imagine a more violent inversion of the Laws of God and Nature than to raise him to the Throne whom Nature intended for the Chain or to make them Slaves to Slaves whom God hath endowed with the Vertues required in Kings Nothing can be more preposterous than to impute to God the frantick Domination which is often exercised by wicked foolish and vile Persons over the wise valiant just
be advanced to the Throne before a great number of Families that come from the Daughters of the House of Valois Or what title those could have before the Daughters of the other Lines descended from Hugh Capet Pepin Meroveus or Pharamond I know not how such questions would be received but I am inclined to think that the wickedness and folly of those who should thereby endeavour to overthrow the most antient and most venerated Constitutions of the greatest Nations and by that means to involve them in the most inextricable difficulties would be requited only with Stones It cannot be denied that the most valiant wise learned and best polished Nations have always followed the same rule tho the weak and barbarous acted otherwise and no man ever heard of a Queen or a man deriving his title from a Female among the antient civilized Nations but if this be not enough the Law of God that wholly omits Females is sufficient to shew that Nature which is his Handmaid cannot advance them When God describes who should be the King of his People if they would have one and how he should govern no mention is made of Daughters The Israelites offer'd the Kingdom to Gideon and to his Sons God promised and gave it to Saul David Jeroboam Jehu and their Sons When all of them save David by their Crimes fell from the Kingdom the Males only were extirpated and the Females who had no part in the Promises did not fall under the Penalties or the Vengeance that was executed upon those Families and we do not in the Word of God or in the History of the Jews hear of any Feminin Reign except that which was usurped by Athaliah nor that any consideration was had of their Descendants in relation to the Kingdom which is enough to shew that it is not according to the Law of God nor to the Law of Nature which cannot differ from it So that Females or such as derive their right by inheritance from Females must have it from some other Law or they can have none at all But tho this question were authentically decided and concluded that Females might or might not succeed we should not be at the end of our contests for if they were excluded it would not from thence follow as in France that their Descendants should be so also for the Privilege which is denied to them because they cannot without receding from the modesty and gentleness of the Sex take upon them to execute all the Duties required may be transferred to their Children as Henry the second and Henry the seventh were admitted tho their Mothers were rejected If it be said that every Nation ought in this to follow their own Constitutions we are at an end of our Controversies for they ought not to be followed unless they are rightly made They cannot be rightly made if they are contrary to the universal Law of God and Nature If there be a general Rule 't is impossible but some of them being directly contrary to each other must be contrary to it If therefore all of them are to be followed there can be no general Law given to all but every People is by God and Nature left to the liberty of regulating these matters relating to themselves according to their own prudence or convenience and this seems to be so certainly true that whosoever does as our Author propose Doctrines to the contrary must either be thought rashly to utter that which he dos not understand or maliciously to cast balls of Division among all Nations whereby every man's Sword would be drawn against every man to the total subversion of all Order and Government SECT XIX Kings cannot confer the right of Father upon Princes nor Princes upon Kings LEst what has bin said before by our Author should not be sufficient to accomplish his design of bringing confusion upon Mankind and some may yet lie still for want of knowing at whose command he should cut his Brother's throat if he has not power or courage to set up a title for himself he has a new project that would certainly do his work if it were received Not content with the absurdities and untruths already uttered in giving the incommunicable right of Fathers not only to those who as is manifestly testified by sacred and prophane Histories did usurp a power over their Fathers or such as owed no manner of obedience to them and justifying those Usurpations which are most odious to God and all good men he now fancies a Kingdom so gotten may escheat for want of an Heir whereas there is no need of seeking any if Usurpation can confer a Right and that he who gets the Power into his hands ought to be reputed the right Heir of the first Progenitor for such a one will be seldom wanting if violence and fraud be justified by the command of God and Nations stand obliged to render obedience till a stronger or more successful Villain throws him from the Throne he had invaded But if it should come to pass that no man would step into the vacant place he has a new way of depriving the People of their Right to provide for the Government of themselves Because says he the dependency of antient Families is oft obscure and worn out of knowledg therefore the Wisdom of all or most Princes hath thought fit many times to adopt those for Heads of Families and Princes of Provinces whose merits abilities or fortunes have enobled them and made them fit and capable of such royal favours All such prime Heads and Fathers have power to consent to the uniting and conferring of their fatherly right and soveraignty on whom they please c. I may justly ask how any one or more Families come to be esteemed more antient than others if all are descended from one common Father as the Scriptures testify or to what purpose it were to enquire what Families were the most antient if there were any such when the youngest and most mean by usurpation gets an absolute right of Dominion over the eldest tho his own Progenitors as Nimrod did but I may certainly conclude That whatever the Right be that belongs to those antient Families it is inherent in them and cannot be conferred on any other by any human power for it proceeds from Nature only The Duty I owe to my Father dos not arise from an usurped or delegated Power but from my birth derived from him and 't is as impossible for any man to usurp or receive by the grant of another the right of a Father over me as for him to become or pretend to be made my Father by another who did not beget me But if he say true this right of Father dos not arise from Nature nor the obedience that I owe to him that begot from the benefits which I have received but is meerly an artificial thing depending upon the Will of another and that we may be sure there can be no error in
justly can be quiet under it If God be the Fountain of Justice Mercy and Truth and those his Servants who walk in them no exercise of Violence Fraud Cruelty Pride or Avarice is patronized by him and they who are the Authors of those Villanies cannot but be the Ministers of him who sets himself up against God because 't is impossible that Truth and Falshood Mercy and Cruelty Justice and the most violent Oppression can proceed from the same Root It was a folly and a lie in those Jews to call themselves the Children of Abraham who did not the Works of Abraham and Christ declared them to be the Children of the Devil whose Works they did which words proceeding from the Eternal Truth do as well indicate to us whose Child and Servant every man is to be accounted as to those who first heard them If our Author 's former Assertions were void of Judgment and Truth his next Clause shews a great defect in his Memory and contradicts the former The Judgments of God says he who hath Power to give and take away Kingdoms are most just yet the ministry of Men who execute God's Judgments without Commission is sinful and damnable If it be true as he says that we are to look at the Power not the Ways by which it is gained and that he who hath it whether it be by Usurpation Conquest or any other means is to be accounted as Father or right Heir to the Father of the People to which Title the most sublime and divine Privileges are annexed a man who by the most wicked and unjust Actions advances himself to the Power becomes immediately the Father of the People and the Minister of God which I take to be a piece of Divinity worthy our Author and his Disciples It may be doubted what he means by a Commission from God for we know of none but what is outwardly by his Word or inwardly by his Spirit and I am apt to think that neither he nor his Abettors allowing of either as to the Point in question he doth fouly prevaricate in alledging that which he thinks cannot be of any effect If any man should say that the Word of God to Moses Joshua Ehud Gideon Samuel Jeroboam and Jehu or any others are in the like cases Rules to be observed by all because that which was from God was good that which was good is good and he that dos good is justified by it He would probably tell us that what was good in them is not good in others and that the Word of God doth justify those only to whom it is spoken That is to say No man can execute the just Judgments of God to the benefit of mankind according to the Example of those Servants of God without damnable sin unless he have a precise Word particularly directed to him for it as Moses had But if any man should pretend that such a Word was come to him he would be accounted an Enthusiast and obtain no credit So that which way soever the Clause be taken it appears to be full of Fraud confessing only in the Theory that which he thinks can never be brought into practice that his beloved Villanies may be thereby secured and that the glorious Examples of the most heroick Actions performed by the best and wisest men that ever were in the World for the benefit of mankind may never be imitated The next Clause shews that I did our Author no wrong in saying that he gave a right to Usurpation for he plainly says That whether the Prince be the supreme Father of his People or the true Heir of such a Father or whether he come to the Crown by Vsurpation or Election of the Nobles or People or by any other way whatsoever c. it is the only Right and Authority of the natural Father In the 3d Chap. Sect. 8. It skills not which way the King comes by his Power whether by Election Donation Succession or by any other means And in another place That we are to regard the Power not the Means by which it is gained To which I need say no more than that I cannot sufficiently admire the ingeniously invented Title of Father by Usurpation and confess that since there is such a thing in the World to which not only private men but whole Nations owe obedience whatsoever has been said antiently as was thought to express the highest excess of Fury and Injustice as Jus datum sceleri Jus omne in ferro est situm Jus licet in jugulos nostros sibi fecerit ense Sylla potens Mariusque ferox Cinna cruentus Caesareaeque domus series were solid Truths good Law and Divinity which did not only signify the actual exercise of the Power but induced a conscientious Obligation of obeying it The Powers so gained did carry in themselves the most sacred and inviolable Rights and the actors of the most detestable Villanies thereby became the Ministers of God and the Fathers of their subdued People Or if this be not true it cannot be denied that Filmer and his followers in the most impudent and outragious Blasphemy have surpassed all that have gone before them To confirm his Assertions he gives us a wonderful explanation of the fifth Commandment which he says enjoins Obedience to Princes under the terms of Honour thy Father and thy Mother drawing this Inference That as all Power is in the Father the Prince who hath it cannot be restrained by any Law which being grounded upon the perfect likeness between Kings and Fathers no man can deny it to be true But if Claudius was the Father of the Roman People I suppose the chast Messalina was the Mother and to be honoured by virtue of the same Commandment But then I fear that such as met her in the most obscene places were not only guilty of Adultery but of Incest The same Honour must needs belong to Nero and his vertuous Poppaea unless it were transferred to his new-made Woman Sporus or perhaps he himself was the Mother and the glorious Title of Pater Patriae belonged to the Raskal who married him as a Woman The like may be said of Agathocles Dionysius Phalaris Busiris Machanidas Peter the Cruel of Castille Christiern of Denmark the last Princes of the House of Valois in France and Philip the Second of Spain Those Actions of theirs which men have ever esteemed most detestable and the whole course of their abominable Government did not proceed from Pride Avarice Cruelty Madness and Lust but from the tender care of most pious Fathers Tacitus sadly describes the state of his Country Vrbs incendiis vastata consumptis antiquissimis delubris ipso Capitolio Civium manibus incenso pollutae Ceremoniae magna Adulteria plenum Exiliis mare infecti caedibus scopuli atrocius in Vrbe saevitum Nobilitas opes omissi vel gesti honores pro crimine ob virtutes certissimum exitium but he was to blame All this proceeded
the Commonwealth be named wherever the Multitude or so much as the major part of it consented either by Voice or Procuration to the Election of a Prince not observing that if an Answer could not be given he did overthrow the Rights of all the Princes that are or ever have bin in the world for if the Liberty of one man cannot be limited or diminished by one or any number of men and none can give away the Right of another 't is plain that the Ambition of one man or of many a faction of Citizens or the mutiny of an Army cannot give a Right to any over the Liberties of a whole Nation Those who are so set up have their root in Violence or Fraud and are rather to be accounted Robbers and Pirats than Magistrates Leo Africanus observing in his History that since the extinction of Mahomet's Race to whom his Countrymen thought God had given the Empire of the World their Princes did not come in by the consent of those Nations which they governed says that they are esteemed Thieves and that on this account the most honourable Men among the Arabians and Moors scorn to eat drink or make Alliances with them and if the case were as general as that Author makes it no better Rule could be any where followed by honourable and worthy Men. But a good Cause must not be lost by the fault of an ill Advocate the Rights of Kings must not perish because Filmer knows not how to defend or dos maliciously betray them I have already proved that David and divers of the Judges were chosen by all Israel Jeroboam by ten Tribes all the Kings of Rome except Tarquin the Proud by the whole City I may add many Examples of the Saxons in our own Country Ina and Offa were made Kings omnium consensu These All are expressed plainly by the words Archiepiscopis Episcopis Abbatibus Senatoribus Ducibus Populo terrae Egbert and Ethelward came to the Crown by the same Authority Omnium consensu Rex creatur Ethelwolf the Monk Necessitate cogente factus est Rex consensus publicus in regem dari petiit Ethelstan tho a Bastard Electus est magno consensu Optimatum a Populo consalutatus In the like manner Edwin's Government being disliked they chose Edgar Vnanimi omnium conspiratione Edwino dejecto eligerunt Deo dictante Edgarum in Regem annuente Populo And in another place Edgarus ab omni Anglorum Populo electus est Ironside being deâ—d Canutus was received by the general consent of all Juraverunt illi quod eum regem sibi eligere vellent foedus etiam cum principibus omni populo ipse illi cum ipso percusserunt Whereupon Omnium consensu super totam Angliam Canutus coronatur Hardicanutus gaudenter ab omnibus suscipitur electus est The same Author says that Edward the Confessor Electus est in regem ab omni populo And another Omnium Electione in Edwardum concordatur Tho the name of Conqueror be odiously given to William the Norman he had the same Title to the Crown with his Predecessors In magna exultatione a Clero Populo susceptus ab omnibus Rex acclamatus I cannot recite all the Examples of this kind that the History of almost all Nations furnishes unless I should make a Volume in bulk not inferior to the Book of Martyrs But those which I have mentioned out of the Sacred Roman and English History being more than sufficient to answer our Author's Challenge I take liberty to add that tho there could not be one Example produced of a Prince or any other Magistrate chosen by the general consent of the People or by the major part of them it could be of no advantage to the Cause he has undertaken to maintain For when a People hath either indefinitely or under certain Conditions and Limitations resigned their Power into the hands of a certain number of men or agreed upon Rules according to which persons should from time to time be deputed for the management of their Affairs the Acts of those persons if their Power be without restrictions are of the same value as the Acts of the whole Nation and the assent of every individual man is comprehended in them If the Power be limited whatsoever is done according to that limitation has the same Authority If it do therefore appear as is testified by the Laws and Histories of all our Northern Nations that the power of every People is either wholly or to such a degree as is necessary for creating Kings granted to their several Gemotes Diets Cortez Assemblies of Estates Parliaments and the like all the Kings that they have any where or at any time chosen do reign by the same authority and have the same right as if every individual man of those Nations had assented to their Election But that these Gemotes Diets and other Assemblies of State have every where had such Powers and executed them by rejecting or setting up Kings and that the Kings now in being among us have received their beginning from such Acts has bin fully proved and is so plain in it self that none but those who are grosly stupid or impudent can deny it which is enough to shew that all Kings are not set up by violence deceit faction of a sew powerful men or the mutinies of Armies but from the consent of such multitudes as joining together frame Civil Societies and either in their own persons at general Assemblies or by their Delegates confer a just and legal Power upon them which our Author rejecting he dos as far as in him lies prove them all to be Usurpers and Tyrants SECT VI. They who have a right of chusing a King have the right of making a King THO the Right of Magistrates do essentially depend upon the consent of those they govern it is hardly worth our pains to examin Whether the silent acceptation of a Governor by part of the People be an argument of their concurring in the election of him or by the same reason the tacit consent of the whole Commonwealth may be maintained for when the question is concerning Right fraudulent surmises are of no value much less will it from thence follow that a Prince commanding by Succession Conquest or Usurpation may be said to be elected by the People for evident marks of dissent are often given Some declare their hatred other murmur more privately many oppose the Governour or Government and succeed according to the measure of their Strength Virtue or Furtune Many would resist but cannot and it were ridiculous to say that the Inhabitants of Greece the Kingdom of Naples or Dutchy of Tuscany do tacitly assent to the Government of the Great Turk King of Spain or Duke of Florence when nothing is more certain than that those miserable Nations abhor the Tyrannies they are under and if they were not mastered by a Power that
transcribing his words and shewing how vilely he is abused by Filmer concluding that if he be in the right the choice and constitution of Government the making of Laws Coronation Inauguration and all that belongs to the chusing and making of Kings or other Magistrates is meerly from the People and that all Power exercised over them which is not so is Usurpation and Tyranny unless it be by an immediate Commission from God which if any man has let him give testimony of it and I will confess he comes not within the reach of our reasonings but ought to be obeyed by those to whom he is sent or over whom he is placed Nevertheless our Author is of another opinion but scorning to give us a reason he adds to Hooker's words As if these Solemnities were a kind of deed whereby the right of Dominion is given which strange untrue and unnatural Conceits are set abroad by Seedsmen of Rebellion and a little farther Unless we will openly proclaim defiance unto all Law Equity and Reason we must say for there is no remedy that in Kingdoms hereditary Birthright giveth a Right unto Soveraign Dominion c. Those Solemnities do either serve for an open testification of the Inheritor's Right or belong to the form of inducing him into the possession These are bold Censures and do not only reach Mr. Hooker whose modesty and peaceableness of spirit is no less esteemed than his Learning but the Scriptures also and the best of human Authors upon which he founded his Opinions But why should it be thought a strange untrue or unnatural Conceit to believe that when the Scriptures say Nimrod was the first that grew powerful in the Earth long before the death of his Fathers and could consequently neither have a right of Dominion over the multitude met together at Babylon nor subdue them by his own strength he was set up by their Consent or that they who made him their Governor might prescribe Rules by which he should govern Nothing seems to me less strange than that a Multitude of reasonable Creatures in the performance of Acts of the greatest importance should consider why they do them And the infinite variety which is observed in the constitution mixture and regulation of Governments dos not only shew that the several Nations of the World have considered them but clearly prove that all Nations have perpetually continued in the exercise of that Right Nothing is more natural than to follow the voice of Mankind The wisest and best have ever employed their studies in forming Kingdoms and Commonwealths or in adding to the perfections of such as were already constituted which had bin contrary to the Laws of God and Nature if a general Rule had bin set which had obliged all to be for ever subject to the Will of one and they had not bin the best but the worst of men who had departed from it Nay I may say that the Law given by God to his peculiar People and the Commands delivered by his Servants in order to it or the prosecution of it had bin contrary to his own eternal and universal Law which is impossible A Law therefore having bin given by God which had no relation to or consistency with the absolute paternal power Judges and Kings created who had no pretence to any preference before their Brethren till they were created and commanded not to raise their Hearts above them when they should be created the Wisdom and Vertue of the best men in all ages shewn in the constitution or reformation of Governments and Nations in variously framing them preserving the possession of their natural Right to be governed by none and in no other way than they should appoint The opinions of Hooker That all publick regiment of what kind soever ariseth from the deliberate advice of men seeking their own good and that all other is meer Tyranny are not untrue and unnatural conceits set abroad by the Seedsmen of Rebellion but real Truths grounded upon the Laws of God and Nature acknowledged and practised by Mankind And no Nation being justly subject to any but such as they set up nor in any other manner than according to such Laws as they ordain the right of chusing and making those that are to govern them must wholly depend upon their Will SECT VII The Laws of every Nation are the measure of Migistratical Power OUr Author lays much weight upon the word Hereditary but the question is What is inherited in an Hereditary Kingdom and how it comes to be hereditary 'T is in vain to say the Kingdom for we do not know what he means by the Kingdom 't is one thing in one place and very different in others and I think it not easy to find two in the world that in power are exactly the same If he understand all that is comprehended within the precincts over which it reaches I deny that any such is to be found in the World If he refer to what preceding Kings enjoyed no determination can be made till the first original of that Kingdom be examined that it may be known what that first King had and from whence he had it If this variety be denied I desire to know whether the Kings of Sparta and Persia had the same power over their Subjects if the same whether both were absolute or both limited if limited how came the Decrees of the Persian Kings to pass for Laws if absolute how could the Spartan Kings be subject to Fines Imprisonment or the sentence of Death and not to have power to send for their own Supper out of the Common Hall Why did Xenophon call Agesilaus a good and faithful King obedient to the Laws of his Country when upon the command of the Ephori he left the War that he had with so much glory begun in Asia if he was subject to none How came the Ephori to be established to restrain the Power of Kings if it could no way be restrained if all owed obedience to them and they to none Why did Theopompus his Wife reprove him for suffering his power to be diminished by their creation if it could not be diminished Or why did he say he had made the Power more permanent in making it less odious if it was perpetual and unalterable We may go farther and taking Xenophon and Plutarch for our guides assert that the Kings of Sparta never had the powers of War or Peace Life and Death which our Author esteems inseparable from Regality and conclude either that no King has them or that all Kings are not alike in power If they are not in all places the same Kings do not reign by an universal Law but by the particular Laws of each Country which give to every one so much power as in the opinion of the givers conduces to the end of their institution which is the publick good It may be also worth our inquiry how this inherited Power came to be hereditary We know that the
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
were heads of Families for the Scripture only says They were Footmen that drew the Sword or rather all the men of Israel from Dan to Beersheba who were able to make War When six hundred Benjamites did only remain of the 26700 't is plain that no more were left of that Tribe their Women and Children having bin destroyed in the Cities after their defeat The next Chapter makes the matter yet more plain for when all that were at the Congregation in Mispeth were found to have sworn they would not give their Daughters to any of the Tribe of Benjamin no Israelite was free from the Oath but the men of Jabesh Gilead who had not bin at the Assembly All the rest of Israel was therefore comprehended and they continuing to govern in a popular way with absolute power sent twelve thousand of their most valiant men to destroy all the Males of Jabesh Gilead and the Women that had lain by Man reserving the Virgins for the Benjamites This is enough for my purpose for the question is not concerning the power that every Housholder in London hath over his Wife Children and Servants but whether they are all perpetually subject to one man and Family and I intend not to set up their Wives Prentices and Children against them or to diminish their Rights but to assert them as the gift of God and Nature no otherwise to be restrained than by Laws made with their consent Reason failing our Author pleases himself with terms of his own invention When the People begged a King of Samuel they were governed by a Kingly power God out of a special love and care to the house of Israel did chuse to be their King himself and did govern them at that time by his Viceroy Samuel and his Sons The behaviour of the Israelites towards Samuel has bin thought proud perverse and obstinate but the fine Court word begging was never before applied to them and their insolent fury was not only seen against Samuel but against God They have not rejected thee but they have rejected me And I think Filmer is the first who ever found that Beggars in begging did reject him of whom they begged Or if they were Beggars they were such as would not be denied for after all that Samuel had said to disswade them from their wicked design they said Nay but we will have a King But lest I should be thought too much inclined to contradict our Author I confess that once he hath happened to be in the right God out of a special love to the house of Israel chose to be their King He gave them Laws prescribed a Form of Government raised up Men in a wonderful manner to execute it filled them with his Spirit was ever present when they called upon him He gave them counsel in their doubts and assistance in all their extremities He made a Covenant with them and would be exalted by them But what is this to an earthly Monarch Who can from hence derive a Right to any one man to play the Lord over his Brethren or a reason why any Nation should set him up God is our Lord by right of creation and our only Lord because he only hath created us If any other were equal to him in Wisdom Power Goodness and Beneficence to us he might challenge the same duty from us If growing out of our selves receiving being from none depending on no providence we were offered the protection of a Wisdom subject to no error a Goodness that could never fail and a Power that nothing could resist it were reasonable for us to enter into a Covenant submit our selves to him and with all the faculties of our minds to addict our selves to his Service But what Right can from hence accrue to a mortal Creature like to one of us from whom we have received nothing and who stands in need of help as much as we Who can from hence deduce an argument to perswade us to depend upon his Wisdom who has as little as other men To submit to his Will who is subject to the same Frailties Passions and Vices with the rest of Mankind Or to expect protection and defence from him whose life depends upon as slender threds as our own and who can have no power but that which we confer upon him If this cannot be done but is of all things the most contrary to common sense no man can in himself have any right over us we are all as free as the four hundred twenty six thousand seven hundred Hebrew Kings We can naturally owe allegiance to none and I doubt whether all the lusts that have reigned amongst men since the beginning of the World have brought more guilt and misery upon them than that preposterous and impudent pretence of imitating what God had instituted When Saul set himself most violently to oppose the command of God he pretended to fulfil it When the Jews grew weary of God's Government and resolved to reject him that he should not reign over them they used some of Moses his words and asked that King of God whom they intended to set up against him But this King had not bin set up against God the People had not rejected God and sinned in asking for him if every Nation by a general Law ought to have one or by a particular Law one had bin appointed by him over them There was therefore no King amongst them nor any Law of God or Nature particular or general according to which they ought to have one SECT X. Aristotle was not simply for Monarchy or against Popular Government but approved or disapproved of either according to circumstances OUr Author well observes that Aristotle is hardly brought to give a general opinion in favour of Monarchy as if it were the best form of Government or to say true never dos it He uses much caution proposes conditions and limitations and makes no decision but according to circumstances Men of Wisdom and Learning are subject to such doubts but none ought to wonder if stupidity and ignorance defend Filmer and his Followers from them or that their hatred to the antient Vertue should give them an aversion to the Learning that was the Nurse of it Those who neither understand the several Species of Government nor the various tempers of Nations may without fear or shame give their opinions in favour of that which best pleaseth them but wise men will always proportion their praises to the merit of the subject and never commend that simply which is good only according to circumstances Aristotle highly applauds Monarchy when the Monarch has more of those Vertues that tend to the good of a Commonwealth than all they who compose it This is the King mentioned in his Ethicks and extolled in his Politicks He is above all by Nature and ought not by a municipal Law to be made equal to others in Power He ought to govern because 't is better for a People to be
wicked King says that he did Saevitiam ignaviae obtendere and we do not more certainly find that Cowards are the cruellest of men than that wickedness makes them Cowards that every man's fears bear a proportion with his guilt and with the number virtue and strength of those he has offended He who usurps a Power over all or abuses a Trust reposed in him by all in the highest measure offends all he fears and hates those he has offended and to secure himself aggravates the former Injuries When these are publick they beget a universal Hatred and every man desires to extinguish a Mischief that threatens ruin to all This will always be terrible to one that knows he has deserved it and when those he dreads are the body of the People nothing but a publick destruction can satisfy his rage and appease his fears I wish I could agree with Filmer in exempting multitudes from fears for they having seldom committed any injustice unless through fear would as far as human fragility permits be free from it Tho the Attick Ostracism was not an extreme Punishment I know nothing usually practised in any Commonwealth that did so much savour of injustice but it proceeded solely from a fear that one man tho in appearance virtuous when he came to be raised too much above his fellow Citizens might be tempted to invade the publick Liberty We do not find that the Athenians or any other free Cities ever injur'd any man unless through such a jealousy or the perjury of Witnesses by which the best Tribunals that ever were or can be establish'd in the world may be misled and no injustice could be apprehended from any if they did not fall into such fears But tho Multitudes may have fears as well as Tyrants the Causes and Effects of them are very different A People in relation to domestick Affairs can desire nothing but Liberty and neither hate or fear any but such as do or would as they suspect deprive them of that Happiness Their endeavours to secure that seldom hurt any except such as invade their Rights and if they err the mistake is for the most part discovered before it produce any mischief and the greatest that ever came that way was the death of one or a few men Their Hatred and desire of Revenge can go no farther than the sense of the Injury received or feared and is extinguished by the death or banishment of the Persons as may be gathered from the examples of the Tarquins Decemviri Cassius Melius and Manlius Capitolinus He therefore that would know whether the hatred and fear of a Tyrant or of a People produces the greater mischiefs needs only to consider whether it be better that the Tyrant destroy the People or that the People destroy the Tyrant or at the worst whether one that is suspected of affecting the Tyranny should perish or a whole People amongst whom very many are certainly innocent and experience shows that such are always first sought out to be destroy'd for being so Popular furies or fears how irregular or unjust soever they may be can extend no farther general Calamities can only be brought upon a People by those who are enemies to the whole Body which can never be the Multitude for they are that body In all other respects the fears that render a Tyrant cruel render a People gentle and cautious for every single man knowing himself to be of little power not only fears to do injustice because it may be revenged upon his Person by him or his Friends Kindred and Relations that suffers it but because it tends to the overthrow of the Government which comprehends all publick and private Concernments and which every man knows cannot subsist unless it be so easy and gentle as to be pleasing to those who are the best and have the greatest power and as the publick Considerations divert them from doing those Injuries that may bring immediate prejudice to the Publick so there are strict Laws to restrain all such as would do private Injuries If neither the People nor the Magistrates of Venice Switzerland and Holland commit such extravagances as are usual in other places it dos not perhaps proceed from the temper of those Nations different from others but from a knowledg that whosoever offers an injury to a private person or attemps a publick mischief is exposed to the impartial and inexorable Power of the Law whereas the chief work of an absolute Monarch is to place himself above the Law and thereby rendring himself the Author of all the evils that the People suffer 't is absurd to expect that he should remove them SECT XXX A Monarchy cannot be well regulated unless the Powers of the Monarch are limited by Law OUr Author's next step is not only to reject Popular Governments but all such Monarchies as are not absolute for if the King says he admits the People to be his Companions he leaves to be a King This is the language of French Lackeys Valet de Chambre's Taylors and others like them in Wisdom Learning and Policy who when they fly to England for sear of a well-deserved Gally Gibet or Wheel are ready to say Il faut que le Roy soit absolu autrement il n'est point Roy. And finding no better men to agree with Filmer in this sublime Philosophy I may be pardoned if I do not follow them till I am convinced in these ensuing points 1. It seems absurd to speak of Kings admitting the Nobility or People to part of the Government for tho there may be and are Nations without Kings yet no man can conceive a King without a People These must necessarily have all the power originally in themselves and tho Kings may and often have a power of granting Honors Immunities and Privileges to private Men or Corporations he dos it only out of the publick Stock which he is entrusted to distribute but can give nothing to the people who give to him all that he can rightly have 2. 'T is strange that he who frequently cites Aristotle and Plato should unluckily acknowledg such only to be Kings as they call Tyrants and deny the name of King to those who in their opinion are the only Kings 3. I cannot understand why the Scripture should call those Kings whose Powers were limited if they only are Kings who are absolute or why Moses did appoint that the power of Kings in Israel should be limited if they resolved to have them if that limitation destroy'd the being of a King 4. Nor lastly how he knows that in the Kingdoms which have a shew of Popularity the Power is wholly in the King The first point was proved when we examined the beginning of Monarchies and found it impossible that there could be any thing of justice in them unless they were established by the common consent of those who were to live under them or that they could make any such establishment unless the right and power
were in them Secondly Neither Plato nor Aristotle acknowledg either reason or justice in the power os a Monarch unless he has more of the Virtues conducing to the good of the Civil Society than all those who compose it and employ them for the publick advantage and not to his own pleasure and profit as being set up by those who seek their own good for no other reason than that he should procure it To this end a Law is set as a rule to him and the best men that is such as are most like to himself made to be his Assistants because say they Lex est mens sine affectu quasi Deus whereas the best of men have their affections and passions and are subject to be misled by them Which shews that as the Monarch is not sor himself nor by himself he dos not give but receive power nor admit others to the participation of it but is by them admitted to what he has Whereupon they conclude that to prefer the absolute power of a man as in those Governments which they call Barbarorum regna before the regular Government of Kings justly exercising a power instituted by Law and directed to the publick good is to chuse rather to be subject to the lust of a Beast than to be governed by a God And because such a choice can only be made by a Beast I leave our Author to find a description of himself in their Books which he so often cites But if Aristotle deserve credit the Princes who reign for themselves and not for the People preferring their own pleasure or profit before the publick become Tyrants which in his language is Enemies to God and Man On this account Boccalini introduces the Princes of Europe raising a mutiny against him in Parnassus for giving such definitions of Tyrants as they said comprehended them all and forcing the poor Philosopher to declare by a new definition that Tyrants were certain men of antient times whose race is now extinguished But with all his Wit and Learning he could not give a reason why those who do the same things that rendred the Antient Tyrants detestable should not be so also in our days In the third place The Scriptures declare the necessity of setting bounds to those who are placed in the highest dignities Moses seems to have had as great abilities as any man that ever lived in the world but he alone was not able to bear the weight of the Government and therefore God appointed Seventy chosen men to be his assistants This was a perpetual Law to Israel and as no King was to have more power than Moses or more abilities to perform the duties of his Office none could be exempted from the necessity of wanting the like helps Our Author therefore must confess that they are Kings who have them or that Kingly Government is contrary to the Scriptures When God by Moses gave liberty to his People to make a King he did it under these conditions He must be one of their Brethren They must chuse him he must not multiply Gold Silver Wives or Horses he must not lift up his Heart above his Brethren And Josephus paraphrasing upon the place says He shall do nothing without the advice of the Sanhedrin or if he do they shall oppose him This agrees with the confession of Zedekiah to the Princes which was the Sanhedrin The King can do nothing without you and seems to have bin in pursuance of the Law of the Kingdom which was written in a Book and laid up before the Lord and could not but agree with that of Mosis unless they spake by different Spirits or that the Spirit by which they did speak was subject to error or change and the whole series of God's Law shews that the Pride Magnificence Pomp and Glory usurped by their Kings was utterly contrary to the will of God They did lift up their hearts above their Brethren which was for bidden by the Law All the Kings of Israel and most of the Kings of Jadah utterly rejected it and every one of them did very much depart from the observation of it I will not deny that the People in their institution of a King intended they should do so they had done it themselves and would have a King that might uphold them in their disobedience they were addicted to the Idolatry of their accursed Neighbours and desired that Government by which it was maintained amongst them In doing this they did not reject Samuel but they rejected God that he should not reign over them They might perhaps believe that unless their King were such as the Law did not permit he would not perform what they intended or that the name of King did not belong to him unless he had a power that the Law denied But since God and his Prophets give the name of King to the chief Magistrate endow'd with a power that was restrain'd within very narrow limits whom they might without offence set up we also may safely give the same to those of the same nature whether it please Fihner or not 4. The practice of most Nations and I may truly say of all that deserve imitation has bin as directly contrary to the absolute power of one man as their Constitutions or if the original of many Governments lie hid in the impenetrable darkness of Antiquity their progress may serve to shew the intention of the Founders Aristotle seems to think that the first Monarchs having bin chosen for their Virtue were little restrain'd in the exercise of their Power but that they or their Children falling into Corruption and Pride grew odious and that Nations did on that account either abolish their Authority or create Senates and other Magistrates who having part of the Power might keep them in order The Spartan Kings were certainly of this nature and the Persian till they conquer'd Babylon Nay I may safely say that neither the Kings which the frantick people set up in opposition to the Law of God nor those of the bordering Nations whose example they chose to follow had that absolute power which our Author attributes to all Kings as inseparable from the name Achish the Philistin lov'd and admir'd David he look'd upon him as an Angel of God and promised that he should be the keeper of his head for ever but when the Princes suspected him and said he shall not go down with us to Battel he was obliged to dismiss him This was not the language of Slaves but of those who had a great part in the Government and the Kings submission to their will shows that he was more like to the Kings of Sparta than to an absolute Monarch who dos whatever pleases him I know not whether the Spartans were descended from the Hebrews as some think but their Kings were under a regulation much like that of the 17 of Deut. tho they had two Their Senate of twenty eight and the Ephori
had a power like to that of the Sanhedrin and by them Kings were condemned to fines imprisonment banishment and death as appears by the examples of Pausanias Clonymus Leonidas Agis and others The Hebrew Discipline was the same Reges Davidicae stirpis says Maimonides judicabant judicabantur They gave testimony in judgment when they were called and testimony was given against them Whereas the Kings of Israel as the same Author says were superbi corde elati spretores legis nec judicabant nec judicabantur proud insolent and contemners of the Law who would neither judg nor submit to judgment as the Law commanded The Fruits they gathered were sutable to the Seed they had sown their Crimes were not left unpunish'd they who despised the Law were destroy'd without Law and when no ordinary course could be taken against them for their excesses they were overthrown by force and the Crown within the space of sew years transported into nine several Families with the utter extirpation of those that had possess'd it On the other hand there never was any Sedition against the Spartan Kings and after the moderate Discipline according to which they liv'd was established none of them died by the hands of their Subjects except only two who were put to death in a way of Justice the Kingdom continued in the same races till Cleomenes was defeated by Antigonus and the Government overthrown by the insolence of the Macedonians This gave occasion to those bestial Tyrants Nabis and Machanidas to set up such a Government as our Author recommends to the World which immediately brought destruction upon themselves and the whole City The Germans who pretended to be descended from the Spartans had the like Government Their Princes according to their merit had the credit of perswading not the power of commanding and the question was not what part of the Government their Kings would allow to the Nobility and People but what they would give to their Kings and 't is not much material to our present dispute whether they learnt this from some obscure knowledg of the Law which God gave to his People or whether led by the light of reason which is also from God they discovered what was altogether conformable to that Law Whoever understands the affairs of Germany knows that the present Emperors notwithstanding their haughty Title have a power limited as in the days of Tacitus If they are good and wise they may perswade but they can command no farther than the Law allows They do not admit the Princes Noblemen and Cities to the power which they all exercise in their general Diets and each of them within their own Precincts but they exercise that which has bin by publick consent bestow'd upon them All the Kingdoms peopled from the North observed the same rules In all of them the powers were divided between the Kings the Nobility Clergy and Commons and by the Decrees of Councils Diets Parliaments Cortez and Assemblies of Estates Authority and Liberty were so balanced that such Princes as assumed to themselves more than the Law did permit were severely punished and those who did by force or fraud invade Thrones were by force thrown down from them This was equally beneficial to Kings and People The Powers as Theopompus King of Sparta said were most safe when they were least envied and hated Lewis the 11th of France was one of the first that broke this Golden Chain and by more subtil Arts than had bin formerly known subverted the Laws by which the fury of those Kings had bin restrain'd and taught others to do the like tho all of them have not so well saved themselves from punishment James the third of Scotland was one of his most apt Scholars and Buchanan in his life says That he was precipitated into all manner of Infamy by men of the most abject condition that the corruption of those times and the ill Example of neighbouring Princes were considerable motives to pervert him for Edward the fourth of England Charles of Burgundy Lewis the 11th of France and John the second of Portugal had already laid the Foundations of Tyranny in those Countries and Richard the third was then most cruelly exercising the same in the Kingdom of England This could not have bin if all the Power had always bin in Kings and neither the People nor the Nobility had ever had any For no man can be said to gain that which he and his Predecessors always possessed or to take from others that which they never had nor to set up any sort of Government if it had bin always the same But the foresaid Lewis the 11th did assume to himself a Power above that of his Predecessors and Philip de Commines shews the ways by which he acquir'd it with the miserable effects of his Acquisition both to himself and to his people Modern Authors observe that the change was made by him and for that reason he is said by Mezeray and others to have brought those Kings out of Guardianship they were not therefore so till he did emancipate them Nevertheless this Emancipation had no resemblance to the unlimited Power of which our Author dreams The General Assemblies of Estates were often held long after his death and continued in the exercise of the Sovereign Power of the Nation Davila speaking of the General Assembly held at Orleans in the time of Francis the second asserts the whole Power of the Nation to have bin in them Monsieur de Thou says the same thing and adds that the King dying suddenly the Assembly continued even at the desire of the Council in the exercise of that Power till they had setled the Regency and other Affairs of the highest importance according to their own judgment Hottoman a Lawyer of that Time and Nation famous for his Learning Judgment and Integrity having diligently examin'd the antient Laws and Histories of that Kingdom distinctly proves that the French Nation never had any Kings but of their own chusing that their Kings had no Power except what was conferr'd upon them and that they had bin removed when they excessively abused or readred themselves unworthy of that Trust. This is sufficiently clear by the forecited examples of Pharamond's Grandchildren and the degenerated Races of Meroveus and Pepin of which many were deposed some of the nearest in Blood excluded and when their Vices seemed to be incorrigible they were wholly rejected All this was done by virtue of that Rule which they call the Salique Law And tho some of our Princes pretending to the Inheritance of that Crown by marrying the Heirs General denied that there was any such thing no man can say that for the space of above twelve hundred years Females or their Descendents who are by that Law excluded have ever bin thought to have any right to the Crown And no Law unless it be explicitly given by God can be of greater Authority than one which
has bin in force for so many Ages What the beginning of it was is not known But Charles the sixth receding from this Law and thinking to dispose of the Succession otherwise than was ordained by it was esteemed mad and all his Acts rescinded And tho the Reputation Strength and Valour of the English commanded by Henry the fifth one of the bravest Princes that have ever bin in the world was terrible to the French Nation yet they opposed him to the utmost of their power rather than suffer that Law to be broken And tho our Success under his Conduct was great and admirable yet soon aster his death with the expence of much Blood and Treasure we lost all that we had on that side and suffer'd the Penalty of having unadvisedly entred into that Quarrel By virtue of the same Law the Agreement made by King John when he was Prisoner at London by which he had alienated part of that Dominion as well as that of Francis the first concluded when he was under the same Circumstances at Madrid were reputed null and upon all occasions that Nation has given sufficient testimony that the Laws by which they live are their own made by themselves and not imposed upon them And 't is as impossible for them who made and deposed Kings exalted or depressed reigning Families and prescribed Rules to the Succession to have received from their own Creatures the Power or part of the Government they had as for a man to be begotten by his own Son Nay tho their Constitutions were much changed by Lewis the 11 th yet they retained so much of their antient Liberty that in the last Age when the House of Valois was as much depraved as those of Meroveus and Pepin had bin and Henry the third by his own Lewdness Hypocrisy Cruelty and Impurity together with the baseness of his Minions and Favorites had rendred himself odious and contemptible to the Nobility and People the great Cities Parliaments the greater and in political matters the sounder part of the Nation declared him to be fallen from the Crown and pursued him to the death tho the blow was given by the hand of a base and half-distracted Monk Henry of Bourbon was without controversy the next Heir but neither the Nobility nor the People who thought themselves in the Government would admit him to the Crown till he had given them satisfaction that he would govern according to their Laws by abjuring his Religion which they judged inconsistent with them The later Commotions in Paris Bourdeaux and other places together with the Wars for Religion shew that tho the French do not complain of every Grievance and cannot always agree in the defence and vindication of their violated Liberties yet they very well understand their Rights and that as they do not live by or for the King but he reigns by and for them so their Privileges are not from him but that his Crown is from them and that according to the true Rule of their Government he can do nothing against their Laws or if he do they may oppose him The Institution of a Kingdom is the act of a free Nation and whoever denies them to be free denies that there can be any thing of right in what they set up That which was true in the beginning is so and must be so for ever This is so far acknowledged by the highest Monarchs that in a Treatise published in the year 1667 by Authority of the present King of France to justify his pretensions to some part of the Low-Countries notwithstanding all the Acts of himself and the King of Spain to extinguish them it is said That Kings are under the happy inability to do any thing against the Laws of their Country And tho perhaps he may do things contrary to Law yet he grounds his Power upon the Law and the most able and most trusted of his Ministers declare the same About the year 1660 the Count D' Aubijoux a man of eminent quality in Languedoc but averse to the Court and hated by Cardinal Mazarin had bin tried by the Parliament of Tholouse for a Duel in which a Gentleman was kill'd and it appearing to the Court then in that City that he had bin acquitted upon forged Letters of Grace false Witnesses powerful Friends and other undue means Mazarin desired to bring him to a new Trial but the Chancellor Seguier told the Queen-Mother it could not be for the Law did not permit a man once acquitted to be again question'd for the same Fact and that if the course of the Law were interrupted neither the Salique Law nor the succession of her Children or any thing else could be secure in France This is farther proved by the Histories of that Nation The Kings of Meroveus and Pepin's Races were suffer'd to divide the Kingdom amongst their Sons or as Hottoman says the Estates made the Division and allotted to each such a part as they thought fit But when this way was found to be prejudicial to the Publick an Act of State was made in the time of Hugh Capet by which it was ordain'd that for the future the Kingdom should not be dismembred which Constitution continuing in force to this day the Sons or Brothers of their Kings receive such an Apannage they call it as is bestow'd on them remaining subject to the Crown as well as other men And there has been no King of France since that time except only Charles the sixth who has not acknowledged that he cannot alienate any part of their Dominion Whoever imputes the acknowledgment of this to Kingcraft and says that they who avow this when 't is for their advantage will deny it on a different occasion is of all men their most dangerous Enemy In laying such fraud to their charge he destroys the veneration by which they subsist and teaches Subjects not to keep Faith with those who by the most malicious deceits show that they are tied by none Human Societies are maintained by mutual Contracts which are of no value if they are not observ'd Laws are made and Magistrates created to cause them to be performed in publick and private matters and to punish those who violate them But none will ever be observed if he who receives the greatest benefit by them and is set up to oversee others give the example to those who of themselves are too much inclin'd to break them The first step that Pompey made to his own ruin was by violating the Laws he himself had proposed But it would be much worse for Kings to break those that are established by the Authority of a whole People and confirmed by the succession of many Ages I am far from laying any such blemishes on them or thinking that they deserve them I must believe the French King speaks sincerely when he says he can do nothing against the Laws of his Country And that our King James did the like when he
acknowledged himself to be the Servant of the Commonwealth and the rather because 't is true and that he is placed in the Throne to that end Nothing is more essential and fundamental in the Constitutions of Kingdoms than that Diets Parliaments and Assemblies of Estates should see this perform'd 'T is not the King that gives them a right to judg of matters of War or Peace to grant Supplies of men and mony or to deny them and to make or abrogate Laws at their pleasure All the Powers rightly belonging to Kings or to them proceed from the same root The Northern Nations seeing what mischiess were generally brought upon the Eastern by referring too much to the irregular will of a man and what those who were more generous had suffer'd when one man by the force of a corrupt mercenary Soldiery had overthrown the Laws by which they lived feared they might fall into the same misery and therefore retained the greater part of the Power to be exercised by their General Assemblies or by Delegates when they grew so numerous that they could not meet These are the Kingdoms of which Grotius speaks where the King has his part and the Senat or People their part of the Supreme Authority and where the Law prescribes such limits that if the King attempt to seize that part which is not his he may justly be opposed Which is as much as to say that the Law upholds the Power it gives and turns against those who abuse it This Doctrin may be displeasing to Court-Parasites but no less profitable to such Kings as follow better Counsels than to the Nations that live under them the Wisdom and Virtue of the best is always fortified by the concurrence of those who are placed in part of the Power they always do what they will when they will nothing but that which is good and 't is a happy impotence in those who through ignorance or malice desire to do evil not to be able to effect it The weakness of such as by defects of Nature Sex Age or Education are not able of themselves to bear the weight of a Kingdom is thereby supported and they together with the People under them preserved from ruin the furious rashness of the Insolent is restrained the extravagance of those who are naturally lews is aw'd and the bestial madness of the most violently wicked and outragious suppress'd When the Law provides for these matters and prescribes ways by which they may be accomplished every man who receives or fears an Injury seeks a remedy in a legal way and vents his Passions in such a manner as brings no prejudice to the Common-wealth If his Complaints against a King may be heard and redressed by Courts of Justice Parliaments and Diets as well as against private men he is satisfied and looks no farther for a Remedy But if Kings like those of Israel will neither judg nor be judged and there be no Power orderly to redress private or publick Injuries every man has recourse to force as if he liv'd in a Wood where there is no Law and that force is always mortal to those who provoke it No Guards can preserve a hated Prince from the vengeance of one resolute hand and they as often sall by the Swords of their own Guards as of others Wrongs will be done and when they that do them cannot or will not be judged publickly the injur'd Persons become Judges in their own case and executioners of their own sentence If this be dangerous in matters of private Concernment 't is much more so in those relating to the publick The lewd extravagancies of Edward and Richard the Seconds whilst they acknowledged the power of the Law were gently reproved and restrained with the removal of some profligate Favourites but when they would admit of no other Law than their own Will no relief could be had but by their Deposition The lawful Spartan Kings who were obedient to the Laws of their Country liv'd in safety and died with glory whereas 't was a strange thing to see a lawless Tyrant die without such infamy and misery as held a just proportion with the wickedness of his Life They did as Plutarch says of Dionysius many mischiefs and suffer'd more This is confirmed by the examples of the Kingdom of Israel and of the Empires of Rome and Greece they who would submit to no Law were destroy'd without any I know not whether they thought themselves to be Gods as our Author says they were but I am sure the most part of them died like Dogs and had the burial of Asses rather than of Men. This is the happiness to which our Author would promote them all If a King admit a People to be his companions he ceaseth to be a King and the State becomes a Democracy And a little farther If in such Assemblies the King Nobility and People have equal shares in the Soveraignty then the King hath but one voice the Nobility likewise one and the People one and then any two of these voices should have power to overrule the third Thus the Nobility and Commons should have a power to make a Law to bridle the King which was never seen in any Kingdom We have heard of Nations that admitted a man to reign over them that is made him King but of no man that made a People The Hebrews made Saul David Jeroboam and other Kings when they returned from Captivity they conferred the same Title upon the Asmonean race as a reward of their Valour and Virtue the Romans chose Romulus Numa Hostilius and others to be their Kings the Spartans instituted two one of the Heraclidae the other of the AEacidae Other Nations set up one a few or more Magistrates to govern them and all the World agrees that Qui dat esse dat modum esse He that makes him to be makes him to be what he is and nothing can be more absurd than to say that he who has nothing but what is given can have more than is given to him If Saul and Romulus had no other title to be Kings than what the People conferred upon them they could be no otherwise Kings than as pleased the People They therefore did not admit the People to be partakers of the Government but the People who had all in themselves and could not have made a King if they had not had it bestow'd upon him what they thought fit and retained the rest in themselves If this were not so then instead of saying to the multitude Will ye have this man to reign they ought to say to the man Wilt thou have this multitude to be a People And whereas the Nobles of Arragon used to say to their new made King We who are as good as you make you our King on condition you keep and maintain our Rights and Liberties and if not not he should have said to them I who am better than you make you to be a People
and will govern you as I please But I doubt whether he would have succeeded till that Kingdom was joined to others of far greater strength from whence a power might be drawn to force them out of their usual method That which has bin said of the Governments of England France and other Countries shows them to be of the same nature and if they do not deserve the name of Kingdoms and that their Princes will by our Author's Arguments be perswaded to leave them those Nations perhaps will be so humble to content themselves without that magnificent Title rather than resign their own Liberties to purchase it and if this will not please him he may seek his glorious soveraign Monarchy among the wild Arabs or in the Island of Ceylon for it will not be found among civiliz'd Nations However more ignorance cannot be express'd than by giving the name of Democracy to those Governments that are composed of the three simple species as we have proved that all the good ones have ever bin for in a strict sense it can only sute with those where the People retain to themselves the administration of the supreme Power and more largely when the popular part as in Athens greatly overbalances the other two and that the denomination is taken from the prevailing part But our Author if I mistake not is the first that ever took the antient Governments of Israel Sparta and Rome or those of England France Germany and Spain to be Democracies only because every one of them had Senats and Assemblies of the People who in their Persons or by their Deputies did join with their chief Magistrates in the exercise of the supreme Power That of Israel to the time of Saul is called by Josephus an Aristocracy The same name is given to that of Sparta by all the Greek Authors and the great contest in the Peloponnesian War was between the two kinds of Government the Cities that were governed Aristocratically or desired to be so following the Lacedemonians and such as delighted in Democracy taking part with the Athenians In like manner Rome England and France were said to be under Monarchies not that their Kings might do what they pleased but because one man had a preheminence above any other Yet if the Romans could take Romulus the Son of a man that was never known Numa a Sabin Hostilius and Aneus Martius private men and Tarquinius Priscus the Son of a banished Corinthian who had no Title to a preference before others till it was bestowed upon them 't is ridiculous to think that they who gave them what they had could not set what limits they pleased to their own gift But says our Author The Nobility will then have one Voice and the People another and they joining may overrule the third which was never seen in any Kingdom This may perhaps be a way of regulating the Monarchical Power but it is not necessary nor the only one There may be a Senate tho the People be excluded that Senate may be composed of men chosen for their Virtue as well as for the Nobility of their Birth The Government may consist of King and People without a Senate or the Senate may be composed only of the Peoples Delegates But if I should grant his assertion to be true the reasonableness of such a Constitution cannot be destroy'd by the consequences he endeavours to draw from it for he who would instruct the world in matters of State must show what is or ought to be not what he fancies may thereupon ensue Besides it dos not follow that where there are three equal Votes Laws should be always made by the plurality for the consent of all the three is in many places required and 't is certain that in England and other parts the King and one of the Estates cannot make a Law without the concurrence of the other But to please Filmer I will avow that where the Nobles and Commons have an equal Vote they may join and over-rule or limit the power of the King and I leave any reasonable man to judg whether it be more safe and fit that those two Estates comprehending the whole body of the Nation in their Persons or by Representation should have a right to over-rule or limit the power of that man woman or child who sits in the Throne or that he or she young or old wise or foolish good or bad should over-rule them and by their vices weakness folly impertinence incapacity or malice put a stop to their proceedings and whether the chief concernments of a Nation may more fasely and prudently be made to depend upon the votes of so many eminent Persons amongst whom many wise and good men will always be found if there be any in the Nation and who in all respects have the same interest with them or upon the will of one who may be and often is as vile ignorant and wretched as the meanest Slave and either has or is for the most part made to believe he has an interest so contrary to them that their suppression is his Advancement Common sense so naturally leads us to the decision of this Question that I should not think it possible for Mankind to have mistaken tho we had no examples of it in History and 't is in vain to say that all Princes are not such as I represent for if a right were annexed to the being of a Prince and that his single judgment should over-balance that of a whole Nation it must belong to him as a Prince and be enjoy'd by the worst and basest as well as by the wisest and best which would inevitably draw on the absurdities above-mention'd But that many are and have bin such no man can deny or reasonably hope that they will not often prove to be such as long as any preference is granted to those who have nothing to recommend them but the Families from whence they derive a continual succession of those who excel in virtue wisdom and experience being promised to none nor reasonably to be expected from any Such a Right therefore cannot be claimed by all and if not by all then not by any unless it proceed from a particular grant in consideration of personal Virtue Ability and Integrity which must be proved and when any one goes about to do it I will either acknowledg him to be in the right or give the reasons of my denial However this is nothing to the general Proposition nay if a man were to be found who had more of the qualities requir'd for making a right judgment in matters of the greatest importance than a whole Nation or an Assembly of the best men chosen out of it which I have never heard to have bin unless in the Persons of Moses Joshua or Samuel who had the Spirit of God for their guide it would be nothing to our purpose for even he might be biassed by his personal Interests which Governments are not established principally to
promote I may go a step farther and truly say that as such vast Powers cannot be generally granted to all who happen to succeed in any Families without evident danger of utter Destruction when they come to be executed by children women sools vicious incapable or wicked persons they can be reasonably granted to none because no man knows what any one will prove till he be tried and the importance of the Affair requires such a trial as can be made of no man till he be dead He that resists one Temptation may fall under the power of another and nothing is more common in the world than to see those men fail grosly in the last actions of their lives who had passed their former days without reproach Wise and good men will with Moses say of themselves I cannot bear the burden and every man who is concern'd for the publick Good ought to let fools know they are not fit to undergo it and by Law to restrain the fury of such as will not be guided by reason This could not be denied tho Governments were constituted for the good of the Governor 'T is good for him that the Law appoints helps for his Infirmities and restrains his Vices but all Nations ought to do it tho it were not so in as much as Kingdoms are not established for the good of one man but of the People and that King who seeks his own good before that of the People departs from the end of his Institution This is so plain that all Nations who have acted freely have some way or other endeavoured to supply the defects or restrain the vices of their supreme Magistrates and those among them deserve most praise who by appointing means adequate to so great a work have taken care that it might be easily and safely accomplished Such Nations have always flourished in Virtue Power Glory and Happiness whilst those who wanted their Wisdom have suffer'd all manner of Calamities by the weakness and injustice of their Princes or have had their hands perpetually in Blood to preserve themselves from their fury We need no better example of the first than that of the Spartans who by appointing such Limits to the power of their Kings as could hardly be transgress'd continued many Ages in great union with them and were never troubled with civil Tumults The like may be said of the Romans from the expulsion of the Tarquins till they overthrew their own Orders by continuing Marius for five years in the Consulat whereas the Laws did not permit a man to hold the same Office two years together and when that rule was broken their own Magistrates grew too strong for them and subverted the Commonwealth When this was done and the power came to be in the hands of one man all manner of evils and calamities broke in like a flood 'T is hard to judg whether the mischiefs he did or those he suffer'd were the greater he who set up himself to be Lord of the World was like to a Beast crowned for the slaughter and his greatness was the forerunner of his ruin By this means some of those who seem not to have bin naturally prone to evil were by their fears put upon such courses to preserve themselves as being rightly estimated were worse than the death they apprehended and the so much celebrated Constantine the Great died no less polluted with the Blood of his nearest Relations and Friends than Nero himself But no place can show a more lively picture of this than the Kingdoms of Granada and others possessed by the Moors in Spain where there being neither Senate nor Assemblies of the Nobility and People to restrain the violence and fury of their Kings they had no other way than to kill them when their vices became insupportable which happening for the most part they were almost all murder'd and things were brought to such extremity that no man would accept a Crown except he who had neither Birth nor Virtue to deserve it If it be said that Kings have now found out more easy ways of doing what they please and securing themselves I answer that they have not proved so to them all and it is not yet time for such as tread in the same steps to boast of their success many have fallen when they thought their designs accomplished and no man as long as he lives can reasonably assure himself the like shall not befal him But if in this corrupted Age the treachery and perjury of Princes be more common than formerly and the number of those who are brought to delight in the rewards of injustice be so increased that their parties are stronger than formerly this rather shows that the balance of Power is broken or hard to be kept up than that there ought to be none and 't is difficult for any man without the Spirit of Prophesy to tell what this will produce Whilst the antient Constitutions of our Northern Kingdoms remain'd intire such as contested with their Princes sought only to reform the Governments and by redressing what was amiss to reduce them to their first Principles but they may not perhaps be so modest when they see the very nature of their Government chang'd and the foundations overthrown I am not sure that they who were well pleased with a moderate Monarchy will submit to one that is absolute and 't is not improbable that when men see there is no Medium between Tyranny and Popularity they who would have bin contented with the reformation of their Government may proceed farther and have recourse to Force when there is no help in the Law This will be a hard work in those places where Virtue is wholly abolished but the difficulty will lie on the other side if any sparks of that remain if Vice and Corruption prevail Liberty cannot subsist but if Virtue have the advantage arbitrary Power cannot be established Those who boast of their Loyalty and think they give testimonies of it when they addict themselves to the will of one Man tho contrary to the Law from whence that quality is derived may consider that by putting their Masters upon illegal courses they certainly make them the worst of men and bring them into danger of being also the most miserable Few or no good Princes have fallen into disasters unless through an extremity of corruption introduced by the most wicked and cannot properly be called unhappy if they perished in their Innocence since the bitterness of Death is asswaged by the tears of a loving People the assurance of a glorious memory and the quiet of a well satisfied mind But of those who have abandoned themselves to all manner of Vice followed the impulse of their own fury and set themselves to destroy the best men for opposing their pernicious designs very few have died in peace Their Lives have bin miserable Death infamous and Memory detestable They therefore who place Kings within the power of the Law and the Law to
hope to remove them proving in the first place that several Nations have plainly and explicitly made Contracts with their Magistrates 2. That they are implicit and to be understood vvhere they are not plainly expressed 3. That they are not dreams but real things and perpetually obliging 4. That Judges are in many places appointed to decide the Contests arising from the breach of these Contracts and vvhere they are not or the party offending is of such force or pride that he vvill not submit Nations have been obliged to take the extremest courses To the first I suppose it vvill not be denied that the annual Magistrates of divers Commonwealths are under some Compact and that there is a power of constraining them to perform the contents or to punish them for the violation The modest behaviour of the Roman Consuls and Dictators as long as their Laws vvere in force might not probably proceed from their good nature Tho the people had not bin as our Author says mad foolish and always desirous to chuse the vvorst men for being most like to themselves but admirably vvise and virtuous 't is not to be imagined that in the space of three or four hundred years they should never have fallen upon one vvho vvould have transgressed if he could have done it safely tho they had used the utmost caution in their choice But the power of the Consuls being only for a year that of the Dictator for six months at most and the Commission that he should take care the Commonwealth might suffer no damage show the end and condition upon which they were chosen and tho their Power is by some thought to have bin absolute yet the Consuls were frequently opposed and brought into order by the Senat Tribuns or People and sometimes the Dictator himself Camillus in his fourth Dictatorship was threatned by the Tribuns with a great Fine and by that means obliged to abdicate his Magistracy I have already mention'd Marcus Fabius Maximus who in the behalf of his Son Quintus condemned to die by Papirius the Dictator appealed to the People And when the Conduct of Fabius in the War against Hannibal was not approved Naenius the Tribune thought he made a very modest Proposition in that he did not desire his Magistracy should be abrogated but that the Master of the Horse should be made equal to him in power which was done accordingly 'T is agreed by all that the Consuls were in the place of Kings and that the Power of the Dictator was at the least equal to what theirs had bin If they therefore were under such a rule which they could not transgress or might be reduced to order if they did and forced to submit to the People as the Kings had done the Kings were also made upon the same conditions and equally obliged to perform them The Scripture is more clear in the case The Judges are said to have bin in power equal to Kings and I may perhaps acknowledg it with relation to the Deuteronomical King or such as the people might have chosen without offending God The Gileadites made a Covenant with Jephtha that he should be their Head and Captain He would not return to his Country till they had done it This was performed solemnly before the Lord in Mispeth and all Israel followed them They might therefore make a Covenant with their Kings for the difference of name dos not increase or diminish the Right Nay they were in duty obliged to do it The words of the 17th of Deuter. He shall not multiply Wives c. that his heart be not lifted up above his Brethren can have no other signification than that they should take care he did it not or as Josephus says hinder him if he attempt it for the Law was not given to the King who was not but to those who might make him if they thought fit In pursuance of this Law The rest of this Chapter is wanting in the Original Manuscript CHAP. III. SECT I. Kings not being fathers of their People nor excelling all others in Virtue can have no other just Power than what the Laws give nor any title to the privileges of the Lord 's Anointed HAVING proved that the right of Fathers is from Nature and incommunicable it must follow that every man doth perpetually owe all love respect service and obedience to him that did beget nourish and educate him and to no other under that name No man therefore can claim the right of a Father over any except one that is so no man can serve two Masters the extent and perpetuity of the Duty which every man owes to his Father renders it impossible for him to owe the same to any other This right of Father cannot be devolved to the Heir of the Father otherwise than as every Son by the Law of Nature is Heir to his Father and has the same right of commanding his Children as his Father had of commanding him when he was a Child no man can owe to his Brother that which he owed to his Father because he cannot receive that from him which he had from his Father but the utmost of all absurdities that can enter into the Heart of man is for one to exact the rights due to a Father who has no other title than force and usurpation it being no less than to say that I owe as much to one who has done me the greatest of all Injuries as to him who has conferred upon me the greatest Benefits or which is yet worse if possible that as these usurpations cannot be made but by robbing spoiling imprisoning or killing the Person in possession that Duty which by the eternal Law of Nature I owe to my Father should oblige me to pay the same veneration obedience and service to the man that has spoiled imprisoned or kill'd my Father as I owed to him or that the same Law which obliged me to obey and defend my Father because he was so should oblige me to obey and defend his enemy because he has imprison'd or kill'd him and not only to pass over the Law of God which makes me the avenger of my Father's Blood but to reward his murderer with the rights that comprehend all that is most tender and sacred in Nature and to look upon one that has done me the greatest of all injustices and injuries as upon him to whom I owe my Birth and Education This being evident to all those who have any measure of common sense I suppose it may be safely concluded that what right soever a Father may have over his Family it cannot relate to that which a King has over his People unless he like the man in the Island of Pines mention'd before be also the Father of them all That which is absolutely unlike in manner and substance institution and exercise must be unlike in all respects and the Conclusions which have their strength from Similitude and Parity can have none when there is
not the least similitude of either And tho it were true that Fathers are held by no contracts which generally 't is not for when the Son is of age and dos something for the Father to which he is not obliged or gives him that which he is not bound to give suppose an Inheritance received from a Friend goods of his own acquisition or that he be emancipated all good Laws look upon those things as a valuable consideration and give the same force to contracts thereupon made as to those that pass between strangers it could have no relation to our question concerning Kings One principal reason that renders it very little necessary by the Laws of Nations to restrain the power of Parents over their Children is because 't is presumed they cannot abuse it they are thought to have a Law in their Bowels obliging them more strictly to seek their good than all those that can be laid upon them by another Power and yet if they depart from it so as inhumanly to abuse or kill their Children they are punished with as much rigour and accounted more unpardonable than other men Ignorance or wilful malice perswading our Author to pass over all this he boldly affirms That the Father of a family governs it by no other Law than his own Will and from thence infers that the condition of Kings is the same He would seem to soften the harshness of this Proposition by saying That a King is always tied by the same Law of Nature to keep this general ground that the safety of the Kingdom is his chief Law But he spoils it in the next page by asserting That it is not right for Kings to do injury but it is right that they go unpunished by the People if they do so that in this point it is all one whether Samuel describe a King or a Tyrant for patient obedience is due unto both no remedy in the Text against Tyrants but crying and praying unto God in that day In this our Author according to the custom of Theaters runs round in a Circle pretends to grant that which is true and then by a lie endeavours to destroy all again Kings by the Law of Nature are obliged to seek chiefly the good of the Kingdom but there is no remedy if they do it not which is no less than to put all upon the Conscience of those who manifestly have none But if God has appointed that all other transgressions of the Laws of Nature by which a private man receives damage should be punished in this world notwithstanding the right reserved to himself of a future punishment I desire to know why this alone by which whole Nations may be and often are destroy'd should escape the hands of Justice If he presume no Law to be necessary in this case because it cannot be thought that Kings will transgress as there was no Law in Sparta against Adultery because it was not thought possible for men educated under that discipline to be guilty of such a Crime and as divers Nations left a liberty to Fathers to dispose of their Children as they thought fit because it could not be imagined that any one would abuse that power he ought to remember that the Spartans were mistaken and for want of that Law which they esteemed useless Adulteries became as common there as in any part of the world and the other error being almost every where discovered the Laws of all civilized Nations make it capital for a man to kill his Children and give redress to Children if they suffer any other extreme injuries from their Parents as well as other persons But tho this were not so it would be nothing to our question unless it could be supposed that whoever gets the power of a Nation into his hands must be immediately filled with the same tenderness of affection to the People under him as a Father naturally has towards the Children he hath begotten He that is of this opinion may examine the lives of Herod Tiberius Caligula and some later Princes of like inclinations and conclude it to be true if he find that the whole course of their actions in relation to the People under them do well sute with the tender and sacred name of Father and altogether false if he find the contrary But as every man that considers what has bin or sees what is every day done in the world must confess that Princes or those who govern them do most frequently so utterly reject all thoughts of tenderness and piety towards the Nations under them as rather to seek what can be drawn from them than what should be done for them and sometimes become their most bitter and publick enemies 't is ridiculous to make the safety of Nations to depend upon a supposition which by daily experience we find to be false and impious to prefer the lusts of a man who violates the most sacred Laws of Nature by destroying those he is obliged to preserve before the welfare of that People for whose good he is made to be what he is if there be any thing of justice in the power he exercises Our Author foolishly thinks to cover the enormity of this nonsense by turning Salutem Populi into Salutem Regni for tho Regnum may be taken for the power of commanding in which sense the preservation of it is the usual object of the care of Princes yet it dos more rightly signify the body of that Nation which is governed by a King And therefore if the Maxim be true as he acknowledges it to be then Salus Populi est lex Suprema and the first thing we are to inquire is whether the Government of this or that man do conduce to the accomplishment of that supreme Law or not for otherwise it ought to have bin said Salus Regis est lex suprema which certainly never entred into the head of a wiser or better man than Filmer His reasons are as good as his Doctrin No Law says he can be imposed on Kings because there were Kings before any Laws were made This would not follow tho the Proposition were true for they who imposed no Laws upon the Kings they at first made from an opinion of their Virtue as in those called by the antients Heroum regna might lay restrictions upon them when they were found not to answer the expectation conceived of them or that their Successors degenerated from their Virtue Other Nations also being instructed by the ill effects of an unlimited Power given to some Kings if there was any such might wisely avoid the Rock upon which their Neighbours had split and justly moderate that Power which had bin pernicious to others However a Proposition of so great importance ought to be proved but that being hard and perhaps impossible because the original of Nations is almost wholly unknown to us and their practice seems to have bin so various that what is true in one is not so in another he is
taking upon him to be King till the Tribe of Judah had chosen him that he often acknowledged Saul to be his Lord. When Baanah and Rechab brought the head of Ishbosheth to him he commanded them to be slain Because they had killed a righteous man upon his Bed in his own House which he could not have said if Ishbosheth had unjustly detained from him the ten Tribes and that he had a right to reign over them before they had chosen him The Word of God did not make him King but only foretold that he should be King and by such ways as he pleased prepared the hearts of the People to set him up and till the time designed by God for that work was accomplished he pretended to no other Authority than what the six hundred men who first followed him afterwards the Tribe of Judah and at last all the rest of the People conferred upon him I no way defend Absalom's revolt he was wicked and acted wickedly but after his death no man was ever blamed or questioned for siding with him and Amasa who commanded his Army is represented in Scripture as a good man even David saying that Joab by slaying Abner and Amasa had killed two men who were better than himself which could not have bin unless the People had a right of looking into matters of Government and of redressing abuses tho being deceived by Absalom they so far erred as to prefer him who was in all respects wicked before the man who except in the matter of Uriah is said to be after God's own heart This right was acknowledged by David himself when he commanded Hushai to say to Absalom I will be thy Servant O King and by Hushai in the following Chapter Nay but whom the Lord and his People and all the men of Israel chuse his will I be and with him will I abide which could have no sense in it unless the People had a right of chusing and that the choice in which they generally concurred was esteemed to be from God But if Saul who was made King by the whole People and anointed by the command of God might be lawfully resisted when he departed from the Law of his Institution it cannot be doubted that any other for the like reason may be resisted If David tho designed by God to be King and anointed by the hand of the Prophet was not King till the People had chosen him and he had made a Covenant with them it will if I mistake not be hard to find a man who can claim a right which is not originally from them And if the People of Israel could erect and pull down institute abrogate or transfer to other Persons or Families Kingdoms more firmly established than any we know the same right cannot be denied to other Nations SECT II. The Kings of Israel and Judah were under a Law not safely to be transgress'd OUR Author might be pardon'd if he only vented his own follies but he aggravates his own crime by imputing them to men of more Credit and tho I cannot look upon Sir Walter Raleigh as a very good Interpreter of Scripture he had too much understanding to say That if practice declare the greatness of Authority even the best Kings of Israel and Judah were not tied to any Law but they did whatsoever they pleased in the greatest matters for there is no sense in those words If practice declares the greatness of Authority even the best were tied to no Law signifies nothing for practice cannot declare the greatness of Authority Peter the Cruel of Castille and Christiern the 2d of Denmark kill'd whom they pleas'd but no man ever thought they had therefore a right to do so and if there was a Law all were tied by it and the best were less likely to break it than the worst But if Sir Walter Raleigh's opinion which he calls a conjecture be taken there was so great a difference between the Kings of Israel and Judah that as to their general proceedings in point of Power hardly any thing can be said which may rightly be applied to both and he there endeavours to show that the reason why the ten Tribes did not return to the house of David after the destruction of the houses of Jeroboam and Baasba was because they would not endure a Power so absolute as that which was exercised by the house of David If he has therefore any where said that the Kings did what they pleased it must be in the sense that Moses Maimonides says The Kings of Israel committed many extravagancies because they were insolent impious and despisers of the Law But whatsoever Sir Walter Raleigh may say for I do not remember his words and have not leisure to seek whether any such are found in his Books 't is most evident that they did not what they pleased The Tribes that did not submit to David nor crown him till they thought fit and then made a Covenant with him took care it might be observed whether he would or not Absalom's Rebellion follow'd by almost all Israel was a terrible check to his Will That of Sheba the Son of Bichri was like to have bin worse if it had not bin suppressed by Joab's diligence and David often confessed the Sons of Zerviah were too hard for him Solomon indeed overthrowing the Law given by Moses multiplying Gold and Silver Wives and Horses introducing Idolatry and lifting up his heart above his Brethren did what he pleased but Rehoboam paid for all the ten Tribes revolted from him by reason of the heavy burdens laid upon them stoned Adoram who was sent to levy the Tributes and set up Jeroboam who as Sir Walter Raleigh says in the place before cited had no other Title than the curtesy of the People and utterly rejected the house of David If practice therefore declares a right the practice of the People to avenge the injuries they suffered from their Kings as soon as they found a man fit to be their Leader shews they had a right of doing it 'T is true the best of the Kings with Moses Joshua and Samuel may in one sense be said to have done what they pleased because they desired to do that only which was good But this will hardly be brought to confer a right upon all Kings And I deny that even the Kings of Judah did what they pleased or that it were any thing to our question if they did Zedekiah professed to the great men that is to the Sanhedrin that without them he could do nothing When Amaziah by his folly had brought a great slaughter upon the Tribe of Judah they conspired against him in publick Council whereupon he fled to Lachish and they pursuing him thither killed him avowed the Fact and it was neither question'd nor blamed which examples agree with the paraphrase of Josephus on Deut. 17. He shall do nothing without the consent of the Sanhedrin and if
he attempt it they shall hinder him This was the Law of God not to be abrogated by man a Law of Liberty directly opposite to the necessity of submitting to the will of a man This was a Gift bestowed by God upon his Children and People whereas slavery was a great part of the Curse denounced against Cham for his wickedness and perpetually incumbent upon his Posterity The great Sanhedrin were constituted Judges as Grotius says most particularly of such matters as concern'd their Kings and Maimonides affirms that the Kings were judged by them The distribution of the power to the inferior Sanhedrins in every Tribe and City with the right of calling the People together in general Assemblies as often as occasion required were the foundations of their Liberty and being added to the Law of the Kingdom prescribed in the 17 th of Deuteronomy if they should think fit to have a King established the Freedom of that People upon a solid foundation And tho they in their fury did in a great measure wave the benefits God had bestowed upon them yet there was enough left to restrain the Lusts of their Kings Ahab did not treat with Naboth as with a Servant whose Person and Estate depended upon his Will and dos not seem to have bin so tender-hearted to grieve much for his refusal if by virtue of his royal Authority he could have taken away his Vineyard and his Life But that failing he had no other way of accomplishing his design than by the fraud of his accursed Wife and the perfidious wretches she employed And no better proof that it did fail can reasonably be required than that he was obliged to have recourse to such fordid odious and dangerous Remedies but we are furnished with one that is more unquestionable Hast thou killed and also taken possession In the place where Dogs licked the blood of Naboth shall they lick thy Blood even thine This shews that the Kings were not only under a Law but under a Law of equality with the rest of the People even that of Retaliation He had raised his heart above his Brethren but God brought him down and made him to suffer what he had done he was in all respects wicked but the justice of this sentence consisted in the Law he had broken which could not have bin if he had bin subject to none But as this Retaliation was the sum of all the Judicial Law given by God to his People the Sentence pronounced against Ahab in conformity to it and the execution committed to Jehu shews that the Kings were no less obliged to perform the Law than other men tho they were not so easily punished for transgressing it as others were and if many of them did escape it perfectly agrees with what had bin foretold by Samuel SECT III. Samuel did not describe to the Israelites the glory of a free Monarchy but the Evils the People should suffer that he might divert them from desiring a King THO no restraint had bin put upon the Lusts of the Hebrew Kings it could be no prejudice to any other Nation They deflected from the Law of God and rejecting him that he should reign over them no longer they fell into that misery which could affect none but those who enjoy the same Blessings and with the same fury despise them If their Kings had more Power than consisted with their welfare they gave it and God renounces the institution of such He gave them a Law of Liberty and if they fell into the shame and misery that accompanies slavery it was their own work They were not obliged to have any King and could not without a crime have any but one who must not raise his heart above the rest of them This was taught by Moses And Samuel who spoke by the same Spirit could not contradict him and in telling the people what such a King as they desired would do when he should be established he did announce to them the misery they would bring upon themselves by chusing such a one as he had forbidden This free Monarchy which our Author thinks to be so majestically described was not only displeasing to the Prophet but declared by God to be a rejection of him and inconsistent with his reign over them This might have bin sufficient to divert any other people from their furious resolution but the Prophet farther enforcing his disswasion told them that God who had in all other cases bin their helper would not hear them when they should cry to him by reason of their King This is the majestick description of that free Monarchy with which our Author is so much pleased It was displeasing to the Prophet hateful to God an aggravation of all the crimes they had committed since they came out of Egypt and that which would bring as it did most certain and irreparable destruction upon themselves But it seems the Regal Majesty in that Age was in its infancy and little in comparison of that which we find described by Tacitus Suetonius and others in later times He shall take your Sons says Samuel and set them over his Chariots and your Daughters to make them Confectioners and Cooks but the Majesty of the Roman Emperors was carried to a higher pitch of Glory Ahab could not without employing treachery and fraud get a small spot of ground for his mony to make a Garden of Herbs But Tiberius Caligula and Nero killed whom they pleased and took what they pleased of their Estates When they had satiated their cruelty and avarice by the murders and confications of the most eminent and best men they commonly exposed their Children to the Lust of their Slaves If the power of doing evil be glorious the utmost excess is its perfection and 't is pity that Samuel knew no more of the effects produced by unrestrained Lust that he might have made the description yet more majestick and as nothing can be suffer'd by man beyond constupration torments and death instead of such trifles as he mention'd he might have shew'd them the effects of Fury in its greatest exaltation If it be good for a Nation to live under such a Power why did not God of his own goodness institute it Did his Wisdom and Love to his People fail Or if he himself had not set up the best Government over them could he be displeased with them for asking it Did he separate that Nation from the rest of Mankind to make their condition worse than that of others Or can they be said to have sinned and rejected God when they desir'd nothing but the Government which by a perpetual Ordinance he had established over all the Nations of the World Is not the Law of Nature a Rule which he has given to things and the Law of man's Nature which is Reason an emanation of the divine Wisdom or some footsteps of divine Light remaining in us Is it possible that this which is from God can be contrary to his
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
of all were blessed with such Masters This way of expression was used by Lot's Daughters who said There was not a man in all the earth to come in to them because there was none in the neighborhood with whom it was thought fit they should accompany Now that the Eastern Nations were then and are still under the Government of those which all free People call Tyrants is evident to all men God therefore in giving them a Tyrant or rather a Government that would turn into Tyranny gave them what they asked under another name and without any blemish to the Mercy promised to their Fathers suffered them to bear the penalty of their wickedness and folly in rejecting him that he should not reign over them But tho the name of Tyrant was unknown to them yet in Greece from whence the word comes it signified no more than one who governed according to his own will distinguished from Kings that governed by Law and was not taken in an ill sense till those who had bin advanced for their Justice Wisdom and Valour or their Descendents were sound to depart from the ends of their Institution and to turn that Power to the oppression of the people which had bin given for their protection But by these means it grew odious and that kind of Government came to be thought only tolerable by the basest of men and those who destroy'd it were in all places esteemed to be the best If Monarchy had bin universally evil God had not in the 17 th of Deuteronomy given leave to the Israelites to set up a King and if that kind of King had bin asked he had not bin displeased and they could not have bin said to reject God if they had not asked that which was evil for nothing that is good is contrary or inconsistent with a peoples obedience to him The Monarchy they asked was displeasing to God it was therefore evil But a Tyrant is no more than an evil or corrupted Monarch The King therefore that they demanded was a Tyrant God in granting one who would prove a Tyrant gave them what they asked and that they might know what they did and what he would be he told them they rejected him and should cry by reason of the King they desired This denotes him to be a Tyrant for as the Government of a King ought to be gentle and easy tending to the good of the people resembling the tender care of a Father to his Family if he who is set up to be a King and to be like to that Father do lay a heavy Yoak upon the people and use them as Slaves and not as Children he must renounce all resemblance of a Father and be accounted an Enemy But says our Author whereas the peoples crying argues some tyrannical oppression we may remember that the peoples Cries are not always an Argument of their living under a Tyrant No man will say Solomon was a Tyrant yet all the Congregation complain'd that Solomon made their Yoak grievous 'T is strange that when Children nay when Whelps cry it should be accounted a mark that they are troubled and that the Cry of the whole people should be none Or that the Government which is erected for their ease should not be esteemed tyrannical if it prove grievous to those it should relieve But as I know no example of a People that did generally complain without cause our Adversaries must alledg some other than that of Solomon before I believe it of any We are to speak reverently of him He was excellent in Wisdom he built the Temple and God appeared twice to him But it must be confess'd that during a great part of his life he acted directly contrary to the Law given by God to Kings and that his ways were evil and oppressive to the people if those of God were good Kings were forbidden to multiply Horses Wives Silver and Gold But he brought together more Silver and Gold and provided more Horses Wives and Concubines than any man is known to have had And tho he did not actually return to Egypt yet he introduced their abominable Idolatry and so far raised his heart above his Brethren that he made them subservient to his Pomp and Glory The People might probably be pleased with a great part of this but when the Yoak became grievous and his foolish Son would not render it more easy they threw it off and the thing being from the Lord it was good unless he be evil But as just Governments are established for the good of the governed and the Israelites desir'd a King that it might be well with them not with him who was not yet known to them that which exalts one to the prejudice of those that made him must always be evil and the People that suffers the prejudice must needs know it better than any other He that denies this may think the state of France might have bin best known from Bulion the late Treasurer who finding Lewis the Thirteenth to be troubled at the peoples misery told him they were too happy since they were not reduced to eat grass But if words are to be understood as they are ordinarily used and we have no other than that of Tyranny to express a Monarchy that is either evil in the institution or fallen into corruption we may justly call that Tyranny which the Scripture calls a grievous Yoak and which neither the old nor the new Counsellors of Rehoboam could deny to be so for tho the first advised him to promise amendment and the others to do worse yet all agreed that what the people said was true This Yoak is always odious to such as are not by natural stupidity and baseness fitted for it but those who are so never complain An Ass will bear a multitude of blows patiently but the least of them drives a Lion into rage He that said the rod is made for the back of fools confessed that oppression will make a wise man mad And the most unnatural of all oppressions is to use Lions like Asses and to lay that Yoak upon a generous Nation which only the basest can deserve and for want of a better word we call this Tyranny Our Author is not contented to vindicate Solomon only but extends his Indulgence to Saul His custom is to patronize all that is detestable and no better testimony could be given of it It is true says he Saul lost his Kingdom but not for being too cruel or tyrannical unto his Subjects but for being too merciful unto his Enemies But he alledges no other reason than that the slaughter of the Priests is not blamed not observing that the Writers of the Scripture in relating those things that are known to be abominable by the Light of Nature frequently say no more of them And if this be not so Lot's drunkenness and incest Ruben's pollution of his Father's bed Abimelec's slaughter of his seventy Brothers and many of the most wicked Acts that
resolved upon by another Power The Jewish Doctors generally agree that the Kings of Judah could make no Law because there was a curse denounced against those who should add to or detract from that which God had given by the hand of Moses that they might sit in Judgment with the High Priest and Sanhedrin but could not judg by themselves unless the Sanhedrin did plainly fail of performing their duty Upon this account Maimonides excuses David for commanding Solomon not to suffer the grey hairs of Joab to go down to the grave in peace and Solomon for appointing him to be kill'd at the soot of the Altar for he having killed Abner and Amasa and by those actions shed the blood of war in time of peace the Sanhedrin should have punished him but being protected by favour or power and even David himself fearing him Solomon was put in mind of his duty which he performed tho Joab laid hold upon the horns of the Altar which by the express words of the Law gave no protection to wilful Murderers The use of the military Sword amongst them was also moderated Their Kings might make War upon the seven accursed Nations that they were commanded to destroy and so might any other man for no peace was to be made with them but not against any other Nation without the assent of the Sanhedrin And when Amaziah contrary to that Law had foolishly made war upon Joash King of Israel and thereby brought a great slaughter upon Judah the Princes that is the Sanhedrin combined against him pursued him to Lachish and killed him there The Legislative Power of Sparta was evidently in the People The Laws that go under the name of Lycurgus were proposed by him to the general Assembly of the People and from them received their Authority But the discipline they contained was of such efficacy for framing the minds of men to virtue and by banishing Silver and Gold they so far banished all manner of Crimes that from the institution of those Laws to the times of their Corruption which was more than eight hundred years we hardly find that three men were put to death of whom two were Kings so that it seems difficult to determine where the power of judging did reside tho 't is most probable considering the nature of their Government that it was in the Senate and in Cases extraordinary in the Ephori with a right of appealing to the People Their Kings therefore could have little to do with the Sword of Justice neither the Legislative nor the Judicial Power being any ways in them The military Sword was not much more in their Power unless the excellency of their Virtues gave them the credit of perswading when the Law denied the right of commanding They were obliged to make war against those and those only who were declared Enemies by the Senate and Ephori and in the manner place and time they directed so that Agesilaus tho carrying on a glorious War in Persia no sooner received the Parchment Roll wherein he was commanded by the Ephori to come home for the defence of his own Country than he immediately returned and is on that account called by no less a man than Xenophon a good and faithful King rendring obedience to the Laws of his Country By this it appears that there are Kings who may be feared by those that do ill and not by such as do well for having no more power than what the Law gives and being obliged to execute it as the Law directs they cannot depart from the Precept of the Apostle My own actions therefore or the sense of my own guilt arising from them is to be the measure of my fear of that Magistrate who is the Minister of God and not his Power The like may be said of almost all the Nations of the world that have had any thing of Civil Order amongst them The supreme Magistrate under what name soever he was known whether King Emperor Asymnetes Suffetes Consul Dictator or Archon has usually a part assigned to him in the administration of Justice and making War but that he may know it to be assigned and not inherent and so assigned as to be employ'd for the publick good not to his own profit or pleasure it is circumscribed by such rules as he cannot safely transgress This is above all seen in the German Nations from whom we draw our Original and Government and is so well described by Tacitus in his treatise of their Customs and Manners that I shall content my self to refer to it and to what I have cited from him in the former part of this Work The Saxons coming into our Country retain'd to themselves the same rights They had no Kings but such as were set up by themselves and they abrogated their Power when they pleased Off a acknowledged that he was chosen for the fence of their Liberty not from his own merit but by their favour and in the Conventus Pananglicus at which all the chief men as well Secular as Ecclesiastical were present it was decreed by the King Archbishops Bishops Abbots Dukes and Senators that the Kings should be chosen by the Priests and by the Elders of the People In pursuance of which Egbert who had no right to the succession was made King Ethelwerd was chosen in the same manner by the consent of all Ethelwolf a Monk for want of a better was advanced to the same Honor. His Son Alfred tho crowned by the Pope and marrying without the consent of the Nobility and Kingdom against their Customs and Statutes acknowledged that he had received the Crown from the bounty of the Princes Elders and People and in his Will declared that he left the People as he had found them free as the inward thoughts of Man His Son Edward was elected to be his Successor Ethelstan tho a Bastard and without all Title was elected by the consent of the Nobility and People Eadred by the same Authority was elected and preferred before the Sons of Edmond his Predecessor Edwin tho rightly chosen was deposed for his ill life and Edgar elected King by the will of God and consent of the People But he also was deprived of the Crown for the Rape of a Nun and after seven years restored by the whole People coram omni multitudine populi Anglorum Ethelred who is said to have bin cruel in the beginning wretched in the course and infamous in the end of his Reign was deposed by the same power that had advanced him Canutus made a Contract with the Princes and the whole People and thereupon was by general consent crown'd King over all England After him Harold was chosen in the usual manner He being dead a Message was sent to Hardi Canute with an offer of the Crown which he accepted and accordingly was received Edward the Consessor was elected King with the consent of the Clergy
Countries they enslaved But if this be equally false sottish absurd and execrable all those Epithets belong to our Author and his Doctrine for attempting to depress all modest and regular Magistracies and endeavouring to corrupt the Scripture to patronize the greatest of Crimes No man therefore who does not delight in error can think that the Apostle designed precisely to determin such questions as might arise concerning any one mans right or in the least degree to prefer any one form of Government before another In acknowledging the Magistrate to be Man's Ordinance he declares that Man who makes him to be may make him to be what he pleaseth and tho there is found more prudence and virtue in one Nation than in another that Magistracy which is established in any one ought to be obeyed till they who made the establishment think fit to alter it All therefore whilst they continue are to be look'd upon with the same respect Every Nation acting freely has an equal right to frame their own Government and to employ such Officers as they please The Authority Right and Power of these must be regulated by the judgment right and power of those who appoint them without any relation at all to the name that is given for that is no way essential to the thing The same name is frequently given to those who differ exceedingly in right and power and the same right and power is as osten annexed to Magistracies that differ in name The same power which had bin in the Roman Kings was given to the Consuls and that which had bin legally in the Dictators for a time not exceeding six months was asterwards usurped by the Cesars and made perpetual The supreme Power which some pretend belongs to all Kings has bin and is enjoy'd in the fullest extent by such as never had the name and no Magistracy was ever more restrain'd than those that had the name of Kings in Sparta Arragon England Poland and other places They therefore that did thus institute regulate and restrain create Magistracies and give them names and powers as seemed best to them could not but have in themselves the coercive as well as the directive over them for the regulation and restriction is coercion but most of all the institution by which they could make them to be or not to be As to the exterior force 't is sometimes on the side of the Magistrate and sometimes on that of the People and as Magistrates under several names have the same work incumbent upon them and the same Power to perform it the same Duty is to be exacted from them and rendred to them which being distinctly proportion'd by the Laws of every Country I may conclude that all Magistratical Power being the Ordinance of Man in pursuance of the Ordinance of God receives its being and measure from the Legislative Power of every Nation And whether the power be placed simply in one a few or many men or in one body composed of the three simple Species whether the single Person be called King Duke Marquess Emperor Sultan Mogol or Grand Signor or the number go under the name of Senat Council Pregadi Diet Assembly of Estates and the like 't is the same thing The same obedience is equally due to all whilst according to the Precept of the Apostle they do the work of God for our good and if they depart from it no one of them has a better Title than the other to our obedience SECT XIII Laws were made to direct and instruct Magistrates and if they will not be directed to restrain them I Know not who they are that our Author introduces to say that the first invention of Laws was to bridle or moderate the overgreat Power of Kings and unless they give some better proof of their judgment in other things shall little esteem them They should have considered that there are Laws in many places where there are no Kings that there were Laws in many before there were Kings as in Israel the Law was given three hundred years before they had any but most especially that as no man can be a rightful King except by Law nor have any just Power but from the Law if that Power be found to be overgreat the Law that gave it must have bin before that which was to moderate or restrain it for that could not be moderated which was not in being Leaving therefore our Author to fight with these Adversaries if he please when he finds them I shall proceed to examin his own Positions The truth is says he the Original of Laws was for the keeping of the Multitude in order Popular Estates could not subsist at all without Laws whereas Kingdoms were govern'd many Ages without them The People of Athens as soon as they gave over Kings were forced to give power to Draco first then to Solon to make them Laws If we will believe him therefore wheresoever there is a King or a man who by having power in his hands is in the place of a King there is no need of Law He takes them all to be so wise just and good that they are Laws to themselves Leges viventes This was certainly verified by the whole succession of the Cesars the ten last Kings of Pharamond's Race all the Successors of Charles the Great and others that I am not willing to name but referring my self to History I desire all reasonable men to consider whether the piety and tender care that was natural to Caligula Nero or Domitian was such a security to the Nations that lived under them as without Law to be sufficient for their preservation for if the contrary appear to be true and that their Government was a perpetual exercise of rage malice and madness by which the worst of men were armed with power to destroy the best so that the Empire could only be saved by their destruction 't is most certain that mankind can never fall into a condition which stands more in need of Laws to protect the innocent than when such Monsters reign who endeavour their extirpation and are too well furnished with means to accomplish their detestable designs Without any prejudice therefore to the Cause that I defend I might confess that all Nations were at the first governed by Kings and that no Laws were imposed upon those Kings till they or the Successors of those who had bin advanced for their virtues by falling into Vice and Corruption did manifestly discover the inconveniences of depending upon their will Besides these there are also children women and fools that often come to the succession of Kingdoms whose weakness and ignorance stands in as great need of support and direction as the desperate fury of the others can do of restriction And if some Nations had bin so sottish not to foresee the mischief of leaving them to their will others or the same in succeeding Ages discovering them could no more be obliged to continue in so pernicious a
able than themselves to bear the weight of a Crown convinces me fully that they had so framed our Laws that even children women or ill men might either perform as much as was necessarily required of them or be brought to reason if they transgressed and arrogated to themselves more than was allow'd For 't is not to be imagined that a company of men should so far degenerate from their own Nature which is Reason to give up themselves and their Posterity with all their concernments in the world to depend upon the will of a child a woman an ill man or a fool If therefore Laws are necessary to popular States they are no less to Monarchies or rather that is not a State or Government which has them not and 't is no less impossible for any to subsist without them than for the body of a man to be and perform its functions without Nerves or Bones And if any People had ever bin so foolish to establish that which they called a Government without Laws to support and regulate it the impossibility of subsisting would evidence the madness of the Constitution and ought to deter all others from following their example 'T is no less incredible that those Nations which rejected Kings did put themselves into the Power of one man to prescribe to them such Laws as he pleased But the instances alledged by our Author are evidently false The Athenians were not without Laws when they had Kings AEgeus was subject to the Laws and did nothing of importance without the consent of the People and Theseus not being able to please them died a banished man Draco and Solon did not make but propose Laws and they were of no force till they were established by the Authority of the People The Spartans dealt in the same manner with Lycurgus he invented their Laws but the People made them and when the Assembly of all the Citizens had approved and sworn to observe them till his return from Crete he resolved rather to die in a voluntary banishment than by his return to absolve them from the Oath they had taken The Romans also had Laws during the Government of their Kings but not finding in them that Perfection they desired the Decemviri were chosen to frame others which yet were of no value till they were passed by the People in the Comitia Centuriata and being so approved they were established But this Sanction to which every man whether Magistrate or private Citizen was subject did no way bind the whole body os the People who still retained in themselves the Power os changing both the matter and the form of their Government as appears by their instituting and abrogating Kings Consuls Dictators Tribuns with consular Power and Decemviri when they thought good for the Commonwealth And if they had this Power I leave our Author to shew why the like is not in other Nations SECT XIV Laws are not made by Kings not because they are busied in greater matters than doing Justice but because Nations will be governed by Rule and not Arbitrarily OUR Author pursuing the mistakes to which he seems perpetually condemned says that when Kings were either busied in War or distracted with publick Cares so that every private man could not have access unto their Persons to learn their Wills and Pleasures then of necessity were Laws invented that so every particular Subject might find his Prince's Pleasure I have often heard that Governments were established for the obtaining of Justice and if that be true 't is hard to imagine what business a supreme Magistrate can have to divert him from accomplishing the principal end of his Institution And 't is as commonly said that this distribution of Justice to a People is a work surpassing the strength of any one man Jethro seems to have bin a wise man and 't is probable he thought Moses to be so also but he found the work of judging the People to be too heavy for him and therefore advised him to leave the judgment of Causes to others who should be chosen for that purpose which advice Moses accepted and God approved The governing power was as insupportable to him as the Judicial He desired rather to die than to bear so great a burden and God neither accusing him of sloth or impatience gave him seventy Assistants But if we may believe our Author the Powers Judicial and Legislative that of judging as well as that of governing is not too much for any man woman or child whatsoever and that he stands in no need either of God's Statutes to direct him or Man's Counsel to assist him unless it be when he is otherwise employ'd and his Will alone is sufficient for all But what if he be not busied in greater matters or distracted with publick cares is every Prince capable of this work Tho Moses had not found it too great for him or it should be granted that a man of excellent natural Endowments great Wisdom Learning Experience Industry and Integrity might perform it is it certain that all those who happen to be born in reigning Families are so If Moses had the Law of God before his eyes and could repair to God himself for the application or explanation of it have all Princes the same Assistance Do they all speak with God face to face or can they do what he did without the Assistance he had If all Kings of mature years are of that perfection are we assured that none shall die before his Heir arrive to the same Or shall he have the same ripeness of Judgment in his Infancy If a Child come to a Crown dos that immediately infuse the most admirable Endowments and Graces Have we any promise from Heaven that Women shall enjoy the same Prerogatives in those Countries where they are made capable of the Succession Or dos that Law which renders them capable defend them not only against the frailty of their own Nature but confer the most sublime virtues upon them But who knows not that no Families do more frequently produce weak or ill men than the greatest and that which is worse their greatness is a snare to them so that they who in a low condition might have passed unregarded being advanced to the highest have often appeared to be or became the worst of all Beasts and they who advance them are like to them For if the Power be in the Multitude as our Author is forced to confess otherwise the Athenians and Romans could not have given all as he says nor a part as I say to Draco Solon or the Decemviri they must be Beasts also who should have given away their Right and Liberty in hopes of receiving Justice from such as probably will neither understand nor regard it or protection from those who will not be able to help themselves and expect such Virtue Wisdom and Integrity should be and for ever remain in the Family they set up as was never known to
publick if they be few and the matters not great others will not suffer their quiet to be disturbed by them if they are many and grievous the Tyranny thereby appears to be so cruel that the Nation cannot subsist unless it be corrected or suppress'd Corruption of Judgment proceeds from private Passions which in these cases never govern and tho a zeal for the publick good may possibly be misguided yet till it Le so it can never be capable of excess The last Tarquin and his lewd Son exercised their Fury and Lust in the murders of the best men in Rome and the rape of Lucretia Appius Claudius was filled with the like madness Caligula and Nero were so well established in the power of committing the worst of Villanies that we do not hear of any man that offer'd to defend himself or woman that presumed to refuse them If they had bin judges in these cases the utmost of all Villanies and Mischiefs had bin established by Law but as long as the judgment of these matters was in the People no private or corrupt Passion could take place Lucius Brutus Valerius Horatius and Virginius with the People that followed them did not by the expulsion of the Kings or the suppression of the Decemviri assume to themselves a power of committing Rapes and Murders nor any advantages beyond what their equals might think they deserved by their virtues and services to the Commonwealth nor had they more credit than others for any other reason than that they shewed themselves most forward in procuring the publick Good and by their Valour and Conduct best able to promote it Whatsoever happen'd after the overthrow of their Liberty belongs not to my Subject for there was nothing of popularity in the judgments that were made One Tyrant destroy'd another the same Passions and Vices for the most part reigned in both The last was often as bad as his Predecessor whom he had overthrown and one was sometimes approved by the People for no other reason than that it was thought impossible for him to be worse than he who was in possession of the Power But if one instance can be of force amongst an infinite number of various Accidents the words of Valerius Asiaticus who by wishing he had bin the man that had kill'd Caligula did in a moment pacify the fury of the Soldiers who were looking for those that had done it shew that as long as men retain any thing of that Reason which is truly their Nature they never fail of judging rightly of Virtue and Vice whereas violent and ill Princes have always done the contrary and even the best do often deflect from the rules of Justice as appears not only by the examples of Edward the first and third who were brought to confess it but even those of David and Solomon Moreover to shew that the decision of these Controversies cannot belong to any King but to the People we are only to consider that as Kings and all other Magistrates whether supreme or subordinate are constituted only for the good of the People the People only can be fit to judg whether the end be accomplished A Physician dos not exercise his Art for himself but for his Patients and when I am or think I shall be sick I send for him of whom I have the best opinion that he may help me to recover or preserve my health but I lay him aside it I find him to be negligent ignorant or unfaithful and it would be ridiculous for him to say I make my self judg in my own case for I only or such as I shall consult am fit to be the judg of it He may be treacherous and through corruption or malice endeavour to poison me or have other defects that render him unfit to be trusted but I cannot by any corrupt passion be led wilfully to do him injustice and if I mistake 't is only to my own hurt The like may be said of Lawyers Stewards Pilots and generally of all that do not act for themselves but for those who employ them And if a Company going to the Indies should find that their Pilot was mad drunk or treacherous they whose lives and goods are concerned can only be fit to judg whether he ought to be trusted or not since he cannot have a right to destroy those he was chosen to preserve and they cannot be thought to judg perversly because they have nothing to lead them but an opinion of truth and cannot err but to their own prejudice In the like manner not only Solon and Draco but Romulus Numa Hostilius the Consuls Dictators and Decemviri were not distinguished from others that it might be well with them Sed ut bonum faelix faustumque sit Populo Romano but that the prosperity and happiness of the People might be procured which being the thing always intended it were absurd to refer the judgment of the performance to him who is suspected of a design to overthrow it and whose passions interests and vices if he has any lead him that way If King James said any thing contrary to this he might be answered with some of his own words I was says he sworn to maintain the Laws of the Land and therefore had bin perjured if I had broken them It may also be presumed he had not forgotten what his Master Buchanan had taught in the Books he wrote chiefly for his Instruction that the violation of the Laws of Scotland could not have bin so fatal to most of his Predecessors Kings of that Country nor as he himself had made them to his Mother if Kings as Kings were above them SECT XV. A general presumption that Kings will govern well is not a sufficient security to the People BUT says our Author yet will they rule their Subjects by the Law and a King governing in a settled Kingdom leaves to be a King and degenerates into a Tyrant so soon as he ceases to rule according unto his Laws Yet where he sees them rigorous or doubtful he may mitigate or interpret This is therefore an effect of their goodness they are above Laws but will rule by Law we have Filmers's word for it But I know not how Nations can be assured their Princes will always be so good Goodness is always accompanied with Wisdom and I do not find those admirable qualities to be generally inherent or entail'd upon supreme Magistrates They do not seem to be all alike and we have not hitherto found them all to live in the same Spirit and Principle I can see no resemblance between Moses and Caligula Joshua and Claudius Gideon and Nero Samson and Vitellius Samuel and Otho David and Domitian nor indeed between the best of these and their own Children If the Sons of Moses and Joshua had bin like to them in wisdom valour and integrity 't is probable they had bin chosen to succeed them if they were not the like is less to be presumed of others
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
dangerous and slavish to depend upon the will of a man which perhaps may be irregular or extravagant in one who is subject to no Law our Author very dexterously removes the scruples by telling us 1. That the Prerogative of the King to be above the Law is only for the good of them that are under the Law and to preserve their Liberties 2. That there can be no Laws without a supreme Power to command or make them In Aristocracies the Noblemen are above the Law in Democracies the People By the like reason in a Monarchy the King must of necessity be above the Law There can be no Soveraign Majesty in him that is under the Law that which gives the very being to a King is the power to give Laws Without this Power he is but an equivocal King It skills not how he comes by this Power whether by Election Donation Succession or any other means I am contented in some degree to follow our Author and to acknowledg that the King neither has nor can have any Prerogative which is not for the good of the People and the preservation of their Liberties This therefore is the foundation of Magistratical Power and the only way of discerning whether the Prerogative of making Laws of being above Laws or any other he may pretend be justly due to him or not and if it be doubted who is the fittest judg to determine that question common sense will inform us that if the Magistrate receive his Power by election or donation they who elect or give him that Power best know whether the good they sought be performed or not if by succession they who instituted the Succession if otherwise that is by fraud or violence the point is decided for he has no right at all and none can be created by those means This might be said tho all Princes were of ripe age sober wise just and good for even the best are subject to mistakes and passions and therefore unfit to be judges of their own concernments in which they may by various means be misguided but it would be extreme madness to attribute the same to Children Fools or Madmen who are not able to judg of the least things concerning themselves or others but most especially to those who coming in by usurpation declare their contempt of all human and divine Laws and are enemies to the People they oppress None therefore can be judges of such cases but the People for whom and by whom the Constitutions are made or their Representatives and Delegates to whom they give the power of doing it But nothing can be more absurd than to say that one man has an absolute power above Law to govern according to his will for the Peoples good and the preservation of their Liberty For no Liberty can subsist where there is such a Power and we have no other way of distinguishing between free Nations and such as are not so than that the free are governed by their own Laws and Magistrates according to their own mind and that the others either have willingly subjected themselves or are by force brought under the power of one or more men to be ruled according to his or their pleasure The same distinction holds in relation to particular persons He is a free man who lives as best pleases himself under Laws made by his own consent and the name of slave can belong to no man unless to him who is either born in the house of a Master bought taken subdued or willingly gives his ear to be nailed to the post and subjects himself to the will of another Thus were the Grecians said to be free in opposition to the Medes and Persians as Artabanus acknowledged in his discourse to Themistocles In the same manner the Italians Germans and Spaniards were distinguish'd from the Eastern Nations who for the most part were under the power of Tyrants Rome was said to have recovered liberty by the expulsion of the Tarquins or as Tacitus expresses it Lucius Brutus established Liberty and the Consulat together as if before that time they had never enjoyed any and Julius Cesar is said to have overthrown the liberty of that People But if Filmer deserve credit the Romans were free under Tarquin enslaved when he was driven away and his Prerogative extinguish'd that was so necessarily required for the defence of their Liberty and were never restored to it till Cesar assum'd all the Power to himself By the same rule the Switzers Grisons Venetians Hollanders and some other Nations are now Slaves and Tuscany the Kingdom of Naples the Ecclesiastical State with such as live under a more gentle Master on the other side of the Water I mean the Turk are free Nations Nay the Florentins who complain of Slavery under the House of Medices were made free by the power of a Spanish Army who set up a Prerogative in that gentle Family which for their good has destroyed all that could justly be called so in that Country and almost wholly dispeopled it I who esteem my self free because I depend upon the will of no man and hope to die in the liberty I inherit from my Ancestors am a slave and the Moors or Turks who may be beaten and kill'd whenever it pleases their insolent Masters are Free men But surely the world is not so much mistaken in the signification of words and things The weight of Chains number of Stripes hardness of labour and other effects of a Master's cruelty may make one servitude more miserable than another but he is a slave who serves the best and gentlest man in the world as well as he who serves the worst and he dos serve him if he must obey his commands and depends upon his will For this reason the Poet ingeniously flattering a good Emperor said that Liberty was not more desirable than to serve a gentle Master but still acknowledged that it was a service distinct from and contrary to Liberty and it had not bin a handsom complement unless the evil of servitude were so extreme that nothing but the virtue and goodness of the Master could any way compensate or alleviate it Now tho it should be granted that he had spoken more like to a Philosopher than a Poet that we might take his words in the strictest sense and think it possible to find such Conveniences in a subjection to the will of a good and wise Master as may balance the loss of Liberty it would be nothing to the question because that Liberty is thereby acknowledged to be destroy'd by the Prerogative which is only instituted to preserve it If it were true that no liberty were to be prefer'd before the service of a good Master it could be of no use to the perishing world which Filmer and his Disciples would by such Arguments bring into a subjection to children fools mad or vicious men These are not cases feigned upon a distant imaginary possibility but so frequently found
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
if there be any inconvenience in this 't is because they do not meet so frequently as the Law requires or by sinister means are interrupted in their sitting But nothing can be more absurd than to say that because the King dos not call Parliaments as the Law and his Oath requires that power should accrue to him which the Law and the consent of the Nation has placed in them There is also such a thing in the Law as a general or particular Pardon and the King may in some degree be entrusted with the power of giving it especially for such crimes as merely relate to himself as every man may remit the injuries done to himself but the confession of Edward the third That the Oath of the Crown had not bin kept by reason of the grant of Pardons contrary to Statutes and a new Act made that all such Charters of Pardon from henceforth granted against the Oath of the Crown and the said Statutes should be held for none demonstrates that this power was not in himself but granted by the Nation and to be executed according to such rules as the Law prescribed and the Parliament approved Moreover there having bin many and sometimes bloody contests for the Crown upon which the Nation was almost equally divided and it being difficult for them to know or even for us who have all the parties before us to judg which was the better side it was understood that he who came to be crown'd by the consent of the People was acceptable to all and the question being determined it was no way fit that he should have a liberty to make use of the publick Authority then in his hands to revenge such personal iniuries as he had or might suppose to have received which might raise new and perhaps more dangerous troubles if the Authors of them were still kept in fear of being prosecuted and nothing could be more unreasonable than that he should emplov his power to the destruction of those who had consented to make him King This made it a matter of course for a King as soon as he was crown'd to issue out a general Pardon which was no more than to declare that being now what he was not before he had no enemy upon any former account For this reason Lewis the twelfth of France when he was incited to revenge himself against those who in the reign of his Predecessor Charles the eighth had caused him to be imprisoned with great danger of his life made this answer That the King of France did not care to revenge the injuries done to the Duke of Orleans and the last King of Sweden seemed no otherwise to remember who had opposed the Queens Abdication and his Election than by conferring honours upon them because he knew they were the best men of the Nation and such as would be his friends when they should see how he would govern in which he was not deceived But lest all those who might come to the Crown of England should not have the same prudence and generosity the Kings were obliged by a Custom of no less force than a Law immediately to put an end to all disputes and the inconveniences that might arise from them This did not proceed from the bounty of the Prerogative which I think is nonsense for tho he that enjoys the Prerogative may have bounty the Prerogative can have none but from common sense from his obligation and the care of his own safety and could have no other effect in Law than what related to his person as appears by the forementioned Statute Pardon 's granted by Act of Parliament are of another nature For as the King who has no other power than by Law can no otherwise dispense with the crimes committed against the Laws than the Law dos enable him the Parliament that has the power of making Laws may intirely abolish the crimes and unquestionably remit the punishment as they please Tho some words of Aristotle's Ethicks are without any coherence shuffled together by our Author with others taken out of his Politicks I do not much except against them No Law made by man can be perfect and there must be in every Nation a power of correcting such defects as in time may arise or be discovered This power can never be so rightly placed as in the same hand that has the right of making Laws whether in one person or in many If Filmer therefore can tell us of a place where one man woman or child however he or she be qualified has the power of making Laws I will acknowledg that not only the hard Cases but as many others as he pleases are referr'd to his or her judgment and that they may give it whether they have any understanding of what they do or not whether they be drunk or sober in their senses or stark mad But as I know no such place and should not be much concerned for the sufferings of a People that should bring such misery upon themselves as must accompany an absolute dependence upon the unruly will of such a creature I may leave him to seek it and rest in a perfect assurance that he dos not speak of England which acknowledges no other Law than its own and instead of receiving any from Kings dos to this day obey none but such as have bin made by our Ancestors or our selves and never admitted any King that did not swear to observe them And if Aristotle deserve credit the power of altering mitigating explaining or correcting the Laws of England is only in the Parliament because none but the Parliament can make them SECT XXIII Aristotle proves that no man is to be entrusted with an absolute Power by shewing that no one knows how to execute it but such a man as is not to be found OUR Author having falsly cited and perverted the sense of Aristotle now brings him in saying That a perfect Kingdom is that wherein the King rules all according to his own will But tho I have read his books of Government with some attention I can find no such thing in them unless the word which signifies mere or absolute may be justly translated into perfect which is so far from Aristotle's meaning that he distinguishes the absolute or despotical Kingdoms from the Legitimate and commending the latter gives no better name than that of barbarous to the first which he says can agree only with the nature of such Nations as are base and stupid little differing from Beasts and having no skill to govern or courage to defend themselves must resign all to the will of one that will take care of them Yet even this cannot be done unless he that should take that care be wholly exempted from the vices which oblige the others to stand in need of it for otherwise 't is no better than if a Sheep should undertake to govern Sheep or a Hog to command Swine Aristotle plainly saying That as men are by nature
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
they were under no coercive Power but 't is certain they had a Law and a regular Magistracy under which they lived four hundred years before they had a King for Saul was the first This Law was not therefore from the King nor by the King but the King was chosen and made by the People according to the liberty they had by the Law tho they did not rightly follow the rules therein prescribed and by that means brought destruction upon themselves The Country in which we live lay long concealed under obscure barbarity and we know nothing of the first Inhabitants but what is involved in fables that leave us still in the dark Julius Cesar is the first who speaks distinctly of our affairs and gives us no reason to believe there was any Monarchy then established amongst us Cassivellaunus was occasionally chosen by the Nations that were most exposed to the violence of the Romans for the management of those wars against them By others we hear of Boadicia Arviragus Galgacus and many more set up asterwards when need required but we find no footsteps of a regular Succession either by inheritance or election And as they had then no Kings or any other general Magistrate that can be said to be equivalent to a King they might have had none at all unless they had thought fit Tacitus mentions a sort of Kings used by the Romans to keep Nations in servitude to them and tho it were true that there had bin such a man as Lucius and he one of this sort he is to be accounted only as a Roman Magistrate and signifies no more to our dispute than if he had bin called Proconsul Pretor or by any other name However there was no series of them that which was temporary and occasional depended upon the will of those who thinking there was occasion created such a Magistrate and omitted to do so when the occasion ceased or was thought to cease and might have had none at all if they had so pleased The Magistracy therefore was from them and depended upon their will We have already mentioned the Histories of the Saxons Danes and Normans from which Nations together with the Britains we are descended and finding that they were severe Assertors of their Liberties acknowledged no human Laws but their own received no Kings but such as swore to observe them and deposed those who did not well perform their Oaths and Duty 't is evident that their Kings were made by the People according to the Law and that the Law by which they became what they were could not be from themselves Our Ancestors were so fully convinced that in the creation of Kings they exercised their own right and were only to consider what was good sor themselves that without regard to the memory of those who had gone besore they were accustomed to take such as seemed most like wisely justly and gently to perform their office refused those that were suspected of pride cruelty or any other vice that might bring prejudice upon the Publick what title soever they pretended and removed such as had bin placed in the Throne if they did not answer the opinion conceived of their virtue which I take to be a manner of proceeding that agrees better with the quality of Masters making Laws and Magistrates for themselves than of Slaves receiving such as were imposed upon them 2. To the second Tho it should be granted that all Nations had at the first bin governed by Kings it were nothing to the question sor no man or number of Men was ever obliged to continue in the errors of his Predecessors The Authority of Custom as well as of Law I mean in relation to the Power that made it to be consists only in its rectitude And the same reason which may have induced one or more Nations to create Kings when they knew no other form of Government may not only induce them to set up another if that be found inconvenient to them but proves that they may as justly do so as remove a man who performs not what was expected from him If there had bin a Rule given by God and written in the minds of men by nature it must have bin from the beginning universal and perpetual or at least must have bin observed by the wisest and best instructed Nations which not being in any measure as I have proved already there can be no reason why a polite People should not relinquish the errors committed by their Ancestors in the time of their barbarism and ignorance and why they should not do it in matters of Government as well as in any other thing relating to life Men are subject to errors and 't is the work of the best and wisest to discover and amend such as their Ancestors may have committed or to add perfection to those things which by them have bin well invented This is so certain that whatsoever we enjoy beyond the misery in which our barbarous Ancestors lived is due only to the liberty of correcting what was amiss in their practice or inventing that which they did not know and I doubt whether it be more brutish to say we are obliged to continue in the Idolatry of the Druids with all the miseries and follies that accompany the most savage barbarity or to confess that tho we have a right to depart from these yet we are for ever bound to continue the Government they had established whatever inconveniences might attend it Tertullian disputing with the Pagans who objected the novelty of the Christian Religion troubled not himself with refuting that error but proving Christianity to be good and true he thought he had sufficiently proved it to be antient A wise Architect may shew his skill and deserve commendation sor building a poor house of vile materials when he can procure no better but he no way ought to hinder others from erecting more glorious Fabricks if they are furnished with the means required Besides such is the imperfection of all human Constitutions that they are subject to perpetual sluctuation which never permits them to continue long in the same condition Corruptions slide in insensibly and the best Orders are sometimes subverted by malice and violence so that he who only regards what was done in such an age often takes the corruption of the State for the institution follows the worst example thinks that to be the first that is the most antient he knows and if a brave People seeing the original defects of their Government or the corruption into which it may be fallen do either correct and reform what may be amended or abolish that which was evil in the institution or so perverted that it cannot be restor'd to integrity these men impute it to sedition and blame those actions which of all that can be performed by men are the most glorious We are not therefore so much to inquire after that which is most antient as that which is best and
he refused In the same place they met and chose Saul to be their King He being dead the men of Judah assembled themselves and anointed David Not long after all the Tribes met at Hebron made a Contract with him and received him as their King In the same manner tho by worse Counsel they made Absalom King And the like was attempted in favour of Sheba the Son of Bichri tho they then had a King chosen by themselves When they found themselves oppressed by the Tributes that had bin laid upon them by Solomon they met at Shechem and being displeased with Rehoboam's answer to their complaints ten of the Tribes made Jeroboam King Jehu and all the other Kings of Israel whether good or bad had no other Title than was conferred upon them by the prevailing part of the People which could not have given them any unless they had met together nor meet together without the consent and against the will of those that reigned unless the Power had bin in themselves Where Governments are more exactly regulated the power of judging when 't is fit to call the Senate or People together is refer'd to one or more Magistrates as in Rome to the Consuls or Tribuns in Athens to the Archons and in Thebes to the Beotarches but none of them could have these Powers unless they had bin given by those who advanced them to the Magistracies to which they were annexed nor could they have bin so annexed if those who created them had not had the right in themselves If these Officers neglected their duty of calling such Assemblies when the publick Affairs required the people met by their own Authority and punished the Person or abrogated the Magistracy as appears in the case of the Decemviri and many others that might be alledged if the thing were not so plain as to need no further proof The reason of this is that they who institute a Magistracy best know whether the end of the Institution be rightly pursued or not And all just Magistracies being the same in essence tho differing in form the same right must perpetually belong to those who put the Sovereign Power into the hands of one a few or many men which is what our Author calls the disposal of the Sovereignty Thus the Romans did when they created Kings Consuls Military Tribuns Dictators or Decemviri and it had bin most ridiculous to say that those Officers gave authority to the people to meet and chuse them for they who are chosen are the Creatures of those who chuse and are nothing more than others till they are chosen The last King of Sweden Charles Gustavus told a Gentleman who was Ambassador there That the Swedes having made him King when he was poor and had nothing in the world he had but one work to do which was so to reign that they might never repent the good opinion they had conceived of him They might therefore meet and did meet to confer the Sovereignty upon him or he could never have had it For tho the Kingdom be hereditary to Males or Females and his Mother was Sister to the Great Gustavus yet having married a stranger without the consent of the Estates she performed not the condition upon which women are admitted to the Succession and thereby falling from her right he pretended not to any The Act of his Election declares he had none and gives the Crown to him and the Heirs of his body with this farther declaration that the benefit of his Election should no way extend to his Brother Prince Adolphus and 't is confessed by all the Swedish Nation that if the King now reigning should die without children the Estates would proceed to a new Election 'T is rightly observ'd by our Author that if the people might meet and give the Sovereign Power they might also direct and limit it for they did meet in this and other Countries they did confer the Sovereign Power they did limit and direct the exercise and the Laws of each people shew in what manner and measure it is every where done This is as certain in relation to Kings as any other Magistrates The Commission of the Roman Dictators was to take care that the Commonwealth might receive no detriment The same was sometimes given to the Consuls King Offa's confession that he was made King to preserve the publick Liberty expresses the same thing And Charles Gustavus who said he had no other work than to govern in such a manner that they who had made him King might not repent shew'd there was a Rule which he stood obliged to follow and an end which he was to procure that he might merit and preserve their good opinion This power of conferring the Sovereignty was exercised in France by those who made Meroveus King in the prejudice of the two Grandchildren of Pharamond Sons to Clodion by those who excluded his Race and gave the Crown to Pepin by those who deposed Lewis le Debonair and Charles le Gros by those who brought in five Kings that were either Bastards or Strangers between him and Charles le Simple by those who rejected his Race and advanced Hugh Capet by those who made Henry the first King to the prejudice of Robert his elder Brother and continued the Crown in the Race of Henry for ten Generations whilst the Descendents of Robert were only Dukes of Burgundy The like was done in Castille and Arragon by frequently preferring the younger before the elder Brother the Descendents of Females before those of the Male-line in the same degree the more remote in Blood before the nearest and sometimes Bastards before the legitimate Issue The same was done in England in relation to every King since the coming in of the Normans as I shewed in the last Section and other places of this Work That they who gave the Sovereignty might also circumscribe and direct it is manifest by the several ways of providing for the Succession instituted by several Nations Some are merely elective as the Empire of Germany and the Kingdom of Poland to this day the Kingdom of Denmark till the year 1660 that of Sweden till the time of Gustavus Ericson who delivered that Nation from the oppression of Christiern the second the cruel King of the Danes In others the Election was confined to one or more Families as the Kingdom of the Goths in Spain to the Balthei and Amalthei In some the eldest Man of the reigning Family was preferr'd before the nearest as in Scotland before the time of Kennethus In other places the nearest in Blood is preferr'd before the elder if more remote In some no regard is had to Females or their Descendents as in France and Turky In others they or their Descendents are admitted either simply as well as Males or under a condition of marrying in the Country or with the consent of the Estates as in Sweden And no other reason can be given for this almost infinite variety of
Constitutions than that they who made them would have it so which could not be if God and Nature had appointed one general Rule for all Nations For in that case the Kingdom of France must be elective as well as that of Poland and the Empire or the Empire and Poland hereditary as that of France Daughters must succeed in France as well as in England or be excluded in England as in France and he that would establish one as the Ordinance of God and Nature must necessarily overthrow all the rest A farther exercise of the natural Liberty of Nations is discovered in the several limitations put upon the Sovereign Power Some Kings says Grotius have the summum Imperium summo modo others modo non summo and amongst those that are under limitations the degrees as to more or less are almost infinite as I have proved already by the example of Arragon antient Germany the Saxon Kings the Normans the Kings of Castille the present Empire with divers others And I may safely say that the antient Government of France was much of the same nature to the time of Charles the 7th and Lewis the 11th but the work of emancipating themselves as they call it begun by them is now brought to perfection in a boundless elevation of the King's greatness and riches to the unspeakable misery of the people 'T were a folly to think this variety proceeds from the concessions of Kings who naturally delight in Power and hate that which crosses their will It might with more reason be imagined that the Roman Consuls who were brought up in liberty who had contracted a love to their Country and were contented to live upon an equal foot with their fellow Citizens should confine the power of their Magistracy to a year or that the Dukes of Venice should be graciously pleased to give power to the Council of Ten to punish them capitally if they transgressed the Laws than that Kings should put such Fetters upon their power which they so much abhor or that they would suffer them if they could be easily broken If any one of them should prove so moderate like Trajan to command the Prefect of the Pretorian Guard to use the Sword for him if he governed well and against him if he did not it would soon be rescinded by his Successor the Law which has no other strength than the act of one man may be annulled by another So that nothing dos more certainly prove that the Laws made in several Countries to restrain the Power of Kings and variously to dispose of the Succession are not from them than the frequent examples of their fury who have exposed themselves to the greatest dangers and brought infinite miseries upon the people through the desire of breaking them It must therefore be concluded that Nations have power of meeting together and of conferring limiting and directing the Sovereignty or all must be grounded upon most manifest Injustice and Usurpation No man can have a power over a Nation otherwise than de jure or de facto He who pretends to have a power de jure must prove that it is originally inherent in him or his predecessor from whom he inherits or that it was justly acquired by him The vanity of any pretence to an original Right appears sufficiently I hope from the proofs already given that the first Fathers of Mankind had it not or if they had no man could now inherit the same there being no man able to make good the Genealogy that should give him a right to the Succession Besides the facility we have of proving the beginnings of all the Families that reign among us makes it as absurd for any of them to pretend a perpetual right to Dominion as for any Citizen of London whose parents and birth we know to say he is the very man Noah who lived in the time of the Flood and is now four or five thousand years old If the power were conferred on him or his Predecessors 't is what we ask for the collation can be of no value unless it be made by those who had a right to do it and the original right by Descent failing no one can have any over a sree People but themselves or those to whom they have given it If acquisition be pretended 't is the same thing for there can be no right to that which is acquired unless the right of invading be proved and that being done nothing can be acquired except what belonged to the person that was invaded and that only by him who had the right of invading No man ever did or could conquer a Nation by his own strength no man therefore could ever acquire a personal right over any and if it was conferr'd upon him by those who made the conquest with him they were the People that did it He can no more be said to have the right originally in and from himself than a Magistrate of Rome or Athens immediately after his creation and having no other at the beginning he can have none to eternity for the nature of it must refer to the original and cannot be changed by time Whatsoever therefore proceeds not from the consent of the People must be de facto only that is void of all right and 't is impossible there should not be a right of destroying that which is grounded upon none and by the same rule that one man enjoys what he gained by violence another may take it from him Cyrus overthrew the Assyrians and Babylonians Alexander the Medes and Persians and if they had no right of making war upon those Nations the Nations could not but have a right of recovering all that had bin unjustly taken from them and avenging the evils they had suffered If the cause of the war was originally just and not corrupted by an intemperate use of the victory the conquer'd People was perhaps obliged to be quiet but the conquering Armies that had conferred upon their Generals what they had taken from their enemies might as justly expect an account of what they had given and that it should be imploy'd according to the intention of the givers as the People of any City might do from their regularly created Magistrates because it was as impossible for Cyrus Alexander or Cesar to gain a power over the Armies they led without their consent as for Pericles Valerius or any other disarmed Citizen to gain more power in their respective Cities than was voluntarily conferr'd upon them And I know no other difference between Kingdoms so constituted by conquering Armies and such as are established in the most orderly manner than that the first usually incline more to war and violence the latter to justice and peace But there have not bin wanting many of the first sort especially the Nations coming from the North who were no less exact in ordaining that which tended to the preservation of Liberty nor less severe in seeing it punctually performed than the
remedy for this unless he allow that Laws made without Kings are as good as those made with them which returns to my purpose for they who have the power of making Laws may by Law make a King as well as any other Magistrate And indeed the intention of this Statute could be no other than to secure mens Persons and Possessions and so far to declare the power of giving and taking away the Crown to be in the Parliament as to remove all disputes concerning titles and to make him to be a Legal King whom they acknowledge to be King SECT XXXVI The general revolt of a Nation cannot be called a Rebellion AS Impostors seldom make lies to pass in the world without putting false names upon things such as our Author endeavour to perswade the People they ought not to defend their Liberties by giving the name of Rebellion to the most just and honourable actions that have bin performed for the preservation of them and to aggravate the matter fear not to tell us that Rebellion is like the sin of Witchcraft But those who seek after truth will easily find that there can be no such thing in the world as the rebellion of a Nation against its own Magistrates and that rebellion is not always evil That this may appear it will not be amiss to consider the word as well as the thing understood by it as it is used in an evil sense The word is taken from the Latin rebellare which signifies no more than to renew a war When a Town or Province had bin subdued by the Romans and brought under their dominion if they violated their Faith after the settlement of Peace and invaded their Masters who had spared them they were said to rebel But it had bin more absurd to apply that word to the People that rose against the Decemviri Kings or other Magistrates than to the Parthians or any of those Nations who had no dependence upon them for all the circumstances that should make a Rebellion were wanting the word implying a superiority in them against whom it is as well as the breach of an establish'd Peace But tho every private man singly taken be subject to the commands of the Magistrate the whole body of the People is not so for he is by and for the People and the People is neither by nor for him The obedience due to him from private men is grounded upon and measured by the General Law and that Law regarding the welfare of the People cannot set up the interest of one or a few men against the publick The whole body therefore of a Nation cannot be tied to any other obedience than is consistent with the common good according to their own judgment and having never bin subdued or brought to terms of peace with their Magistrates they cannot be said to revolt or rebel against them to whom they owe no more than seems good to themselves and who are nothing of or by themselves more than other men Again the thing signified by rebellion is not always evil for tho every subdued Nation must acknowledg a superiority in those who have subdued them and rebellion do imply a breach of the peace yet that superiority is not infinite the peace may be broken upon just grounds and it may be neither a crime nor infamy to do it The Privernates had bin more than once subdued by the Romans and had as often rebelled Their City was at last taken by Plautius the Consul after their Leader Vitruvius and great numbers of their Senate and People had bin kill'd Being reduced to a low condition they sent Ambassadors to Rome to desire peace where when a Senator asked them what punishment they deserved one of them answered The same which they deserve who think themselves worthy of Liberty The Consul then demanded what kind of Peace might be expected from them if the punishment should be remitted The Ambassador answer'd If the terms you give be good the Peace will be observed by us faithfully and perpetually if bad it will soon be broken And tho some were offended with the ferocity of the answer yet the best part of the Senat approved it as worthy of a man and a freeman and confessing that no Man or Nation would continue under an uneasy condition longer than they were compell'd by force said They only were fit to be made Romans who thought nothing valuable but Liberty Upon which they were all made Citizens of Rome and obtained whatsoever they had desired I know not how this matter can be carried to a greater height for if it were possible that a People resisting oppression and vindicating their own Liberty could commit a crime and incur either guilt or infamy the Privernates did who had bin often subdued and often pardoned but even in the judgment of their Conquerors whom they had offended the resolution they professed of standing to no agreement imposed upon them by necessity was accounted the highest testimony of such a virtue as rendred them worthy to be admitted into a Society and equality with themselves who were the most brave and virtuous people of the world But if the patience of a conquer'd People may have limits and they who will not bear oppression from those who had spared their Lives may deserve praise and reward from their conquerors it would be madness to think that any Nation can be obliged to bear whatsoever their own Magistrates think fit to do against them This may seem strange to those who talk so much of conquests made by Kings Immunities Liberties and Privileges granted to Nations Oaths of Allegiance taken and wonderful benefits conferred upon them But having already said as much as is needful concerning Conquests and that the Magistrate who has nothing except what is given to him can only dispense out of the publick Stock such Franchises and Privileges as he has received for the reward of Services done to the Country and encouragement of Virtue I shall at present keep my self to the two last points Allegiance signifies no more as the words ad legem declare than such an obedience as the Law requires But as the Law can require nothing from the whole People who are masters of it Allegiance can only relate to particulars and not to the whole No Oath can bind any other than those who take it and that only in the true sense and meaning of it but single men only take this Oath and therefore single men are only obliged to keep it the body of a People neither dos nor can perform any such act Agreements and Contracts have bin made as the Tribe of Judah and the rest of Israel afterward made a Covenant with David upon which they made him King but no wise man can think that the Nation did thereby make themselves the Creature of their own Creature The sense also of an Oath ought to be considered No man can by an Oath be obliged to any thing
a Proclamation for their utter extirpation and not long after being informed of the truth he gave them leave by another Proclamation to kill whom they pleased which they executed upon seventy thousand men The Books of Ezra Nehemiah and Daniel manifestly discover the like fluctuation in all the Counsels of Nabuchodonosor Cyrus Darius and Artaxerxes When good men had credit with them they favour'd the Israelites sent them back to their own Country restored the sacred Vessels that had bin taken away gave them all things necessary for the rebuilding of the City and advanced the chief of them to the highest employments But if they fell into ill hands three just men must be thrown into the burning Furnace sor refusing to worship an Idol Daniel must be cast to the Lions the holy City esteemed rebellious and those who endeavoured to rebuild it enemies to Kings Such was the state of things when their Proclamations passed for Laws and numbers of flattering slaves were ready to execute their commands without examining whether they were just or unjust good or bad The life and death of the best men together with the very being of Nations was exposed to chance and they were either preserved or destroyed according to the humor of that man who spoke last to the King or happened to have credit with him If a frantick fancy come into the head of a drunken whore Persepolis must be burnt and the hand of Alexander is ready to execute her will If a dancing wench please Herod the most venerable of all human heads must be offered in a dish for a sacrifice to the rage of her impure mother The nature of man is so frail that wheresoever the word of a single Person has had the force of a Law the innumerable extravagances and mischiefs it has produced have bin so notorious that all Nations who are not stupid slavish and brutish have always abominated it and made it their principal care to find out remedies against it by so dividing and balancing the powers of their Government that one or a few men might not be able to oppress and destroy those they ought to preserve and protect This has always bin as grateful to the best and wisest Princes as necessary to the weakest and worst as I have proved already by the examples of Theopompus Moses and many others These considerations have given beginning growth and continuance to all the mixed Governments that have bin in the world and I may justly say there never was a good one that was not mixed If other proofs of their rectitude were wanting our Author's hatred would be enough to justify them He is so bitter an enemy to mankind as to be displeased with nothing but that which tends to their good and so perverse in his judgment that we have reason to believe that to be good which he most abhors One would think he had taken the model of the Government he proposes from the monstrous Tyranny of Ceylon an Island in the East-Indies where the King knows no other Law than his own will He kills tears in pieces empales or throws to his Elephants whomsoever he pleases No man has any thing that he can call his own He seldom fails to destroy those who have bin employ'd in his domestick Service or publick Offices and few obtain the favour of being put to death and thrown to the dogs without torments His Subjects approach him no otherwise than on their knees licking the dust and dare assume to themselves no other name than that of dogs or limbs of dogs This is a true pattern of Filmer's Patriarchical Monarch His Majesty as I suppose is sufficiently exalted for he dos whatever he pleases The exercise of his power is as gentle as can reasonably be expected from one who has all by the unquestionable right of usurpation and knows the people will no longer suffer him and the Villains he hires to be the instruments of his cruelty than they can be kept in such ignorance weakness and baseness as neither to know how to provide for themselves or dare to resist him We ought to esteem our selves happy if the like could be established among us and are much obliged to our Author for so kindly proposing an expedient that might terminate all our disputes Let Proclamations obtain the power of Laws and the business is done They may be so ingeniously contrived that the antient Laws which we and our Fathers have highly valued shall be abolished or made a snare to all those that dare remember they are Englishmen and are guilty of the unpardonable crime of loving their Country or have the courage conduct and reputation requir'd to defend it This is the sum of Filmer's Philosophy and this is the Legacy he has left to testify his affection to the Nation which having for a long time lain unregarded has bin lately brought into the light again as an introduction of a Popish Successor who is to be established as we ought to believe for the security of the Protestant Religion and our English Liberties Both will undoubtedly flourish under a Prince who is made to believe the Kingdom is his Patrimony that his Will is a Law and that he has a Power which none may resist If any man doubt whether he will make a good use of it he may only examine the Histories of what others in the same circumstances have done in all places where they have had power The principles of that Religion are so full of meekness and charity the Popes have always shew'd themselves so gentle towards those who would not submit to their Authority the Jesuits who may be accounted the Soul that gives life to the whole body of that Faction are so well natur'd faithful and exact in their morals so full of innocence justice and truth that no violence is to be fear'd from such as are govern'd by them The fatherly care shew'd to the Protestants of France by the five last Kings of the House of Valois the mercy of Philip the second of Spain to his Pagan Subjects in the West-Indies and the more hated Protestants in the Netherlands the moderation of the Dukes of Savoy towards the Vaudois in the Marquisat of Saluzzo and the Vallies of Piedmont the gentleness and faith of the two Maries Queens of England and Scotland the kindness of the Papists to the Protestants of Ireland in the year 1641 with what we have reason to believe they did and do still intend if they can accomplish the ends of their Conspiracy In a word the sweetness and Apostolical meekness of the Inquisition may sufficiently convince us that nothing is to be feared where that principle reigns We may suffer the word of such a Prince to be a Law and the people to be made to believe it ought to be so when he is expected Tho we should wave the Bill of Exclusion and not only admit him to reign as other Kings have done but resign the whole power into
force or fraud to usurp a Power of imposing what they pleased Others being sottish cowardly and base have so far erred in the Foundations as to give up themselves to the will of one or few men who turning all to their own profit or pleasure have bin just in nothing but in using such a people like beasts Some have placed weak defences against the lusts of those they have advanced to the highest places and given them opportunities of arrogating more power to themselves than the Law allows Where any of these errors are committed the Government may be easy for a while or at least tolerable whilst it continues uncorrupted but it cannot be lasting When the Law may be easily or safely overthrown it will be attempted Whatever virtue may be in the first Magistrates many years will not pass before they come to be corrupted and their Successors deflecting from their integrity will seize upon the ill-guarded prey They will then not only govern by will but by that irregular will which turns the Law that was made for the publick good to the privat advantage of one or few men 'T is not my intention to enumerate the several ways that have been taken to effect this or to shew what Governments have deflected from the right and how far But I think I may justly say that an Arbitrary Power was never well placed in any men and their Successors who were not obliged to obey the Laws they should make This was well understood by our Saxon Ancestors They made Laws in their Assemblies and Councils of the Nation but all those who proposed or assented to those Laws as soon as the Assembly was dissolved were comprehended under the power of them as well as other men They could do nothing to the prejudice of the Nation that would not be as hurtful to those who were present and their posterity as to those who by many accidents might be absent The Normans enter'd into and continued in the same path Our Parliaments at this day are in the same condition They may make prejudicial Wars ignominious Treaties and unjust Laws Yet when the Session is ended they must bear the burden as much as others and when they die the teeth of their Children will be set an edg with the sower Grapes they have eaten But 't is hard to delude or corrupt so many Men do not in matters of the highest importance yield to slight temptations No man serves the Devil sor nothing Small wages will not content those who expose themselves to perpetual infamy and the hatred of a Nation for betraying their Country Our Kings had not wherewithal to corrupt many till these last twenty years and the treachery of a few was not enough to pass a Law The union of many was not easily wrought and there was nothing to tempt them to endeavour it for they could make little advantage during the Session and were to be lost in the mass of the people and prejudiced by their own Laws as soon as it was ended They could not in a short time reconcile their various interests or passions so as to combine together against the publick and the former Kings never went about it We are beholden to H-de Cl-ff-rd and D-nby for all that has bin done of that kind They found a Parliament full of lewd young men chosen by a furious people in spite to the Puritans whose severity had distasted them The weakest of all Ministers had wit enough to understand that such as these might be easily deluded corrupted or bribed Some were fond of their Seats in Parliament and delighted to domineer over their Neighbours by continuing in them Others prefer'd the cajoleries of the Court before the honour of performing their duty to the Country that employ'd them Some sought to relieve their ruined Fortunes and were most forward to give the King a vast Revenue that from thence they might receive Pensions others were glad of a temporary protection against their Creditors Many knew not what they did when they annulled the Triennial Act voted the Militia to be in the King gave him the Excise Customs and Chimney-mony made the Act for Corporations by which the greatest part of the Nation was brought under the power of the worst men in it drunk or sober pass'd the five mile Act and that for Uniformity in the Church This embolden'd the Court to think of making Parliaments to be the instruments of our Slavery which had in all Ages past bin the firmest pillars of our Liberty There might have bin perhaps a possibility of preventing this pernicious mischief in the Constitution of our Government But our brave Ancestors could never think their Posterity would degenerate into such baseness to sell themselves and their Country but how great soever the danger may be 't is less than to put all into the hands of one man and his Ministers the hazard of being ruin'd by those who must perish with us is not so much to be feared as by one who may enrich and strengthen himself by our destruction 'T is better to depend upon those who are under a possibility of being again corrupted than upon one who applies himself to corrupt them because he cannot otherwise accomplish his designs It were to be wished that our security were more certain but this being under God the best Anchor we have it deserves to be preserved with all care till one of a more unquestionable strength be framed by the consent of the Nation SECT XLVI The coercive power of the Law proceeds from the Authority of Parliament HAVING proved that Proclamations are not Laws and that the Legislative Power which is arbitrary is trusted only in the hands of those who are bound to obey the Laws that are made 't is not hard to discover what it is that gives the power of Law to the Sanctions under which we live Our Author tell us that all Statutes or Laws are made properly by the King alone at the Rogation of the People as his Majesty King James of happy Memory affirms in his true Law of free Monarchy and as Hooker teaches us That Laws do not take their constraining power from the quality of such as devise them but from the power that giveth them the strength of Law But if the Rogation of the People be necessary that cannot be a Law which proceeds not from their Rogation the power therefore is not alone in the King for a most important part is confessed to be in the People And as none could be in them if our Author's Proposition or the Principles upon which it is grounded were true the acknowledgment of such a part to be in the People shews them to be false For if the King had all in himself none could participate with him if any do participate he hath not all and 't is from that Law by which they do participate that we are to know what part is left to him The preambles of most Acts of Parliaments
of Parliament and to pick out what might serve her turn but frequently passed forty or fifty in a Session without reading one of them She knew that she did not reign for her self but for her People that what was good for them was either good for her or that her good ought not to come into competition with that of the whole Nation and that she was by Oath obliged to pass such Laws as were presented to her on their behalf This not only shews that there is no such thing as a Legislative Power placed in Kings by the Laws of God and Nature but that Nations have it in themselves It was not by Law nor by Right but by Usurpation Fraud and Perjury that some Kings took upon them to pick what they pleased out of the publick Acts. Henry the fifth did not grant us the right of making our own Laws but with his approbation we abolished a detestable abuse that might have proved fatal to us And if we examine our History we shall find that every good and generous Prince has sought to establish our Liberties as much as the most base and wicked to infringe them THE END THE TABLE CHAP. I. SEction 1. The Introduction Page 1. Sect. 2. The common notions of Liberty are not from School-Divines but from Nature p. 5. Sect. 3. Implicit Faith belongs to Fools and Truth is comprehended by examining Principles p. 8. Sect. 4. The Rights of particular Nations cannot subsist if general Principles contrary to them are received as true p. 11. Sect. 5. To depend upon the will of a man is slavery p. 12. Sect. 6. God leaves to man the choice of forms in Government and those who constitute one form may abrogate it p. 14. Sect. 7. Abraham and the Patriarchs were not Kings p. 17. Sect. 8. Nimrod was the first King during the life of Chusn Cham Shem and Noah p. 19. Sect. 9. The Power of a Father belongs only to a Father p. 22. Sect. 10. Such as enter into Society must in some degree diminish their Liberty p. 23. Sect. 11. No man comes to command many unless by consent or by force p. 24. Sect. 12. The pretended paternal Right is divisible or indivisible if divisible 't is extinguished if indivisible universal p. 25. Sect. 13. There was no shadow of a paternal Kingdom amongst the Hebrews nor precept for it p. 27. Sect. 14. If the paternal Right had included Dominion and was to be transferr'd to a single Heir it must perish if he were not known and could be applied to no other person p. 30. Sect. 16. The Antients chose those to be Kings who excell'd in the Virtues that are most beneficial to Civil Societies p. 36. Sect. 17. God having given the Government of the World to no one man nor declared how it should be divided left it to the will of man p. 41. Sect. 18. If a right of Dominion were esteemed hereditary according to the Law of Nature a multitude of destructive and inextricable Controversies would thereupon arise p. 45. Sect. 19. Kings cannot confer the Right of Father upon Princes nor Princes upon Kings p. 48. Sect. 20. All just Magistratical Power is from the People p. 54. CHAP. II. SECT 1. That 't is natural for Nations to govern or to chuse Governors and that Virtue only gives a natural preference of one man above another or reason why one should be chosen rather than another p. 59. Sect. 2. Every man that hath Children hath the right of a Father and is capable of preferment in a Society composed of many p. 67. Sect. 3. Government is not instituted for the good of the Governor but of the Governed and Power is not an advantage but a burden p. 70. Sect. 4. The paternal Right devolves to and is inherited by all the Children p. 71. Sect. 5. Free men join together and frame greater or lesser Societies and give such forms to them as best pleases themselves p. 75. Sect. 6. They who have a right of chusing a King have the right of making a King p. 83. Sect. 7. The Laws of every Nation are the measure of magistratical Power p. 87. Sect. 8. There is no natural propensity in man or beast to Monarchy p. 94. Sect. 9. The Government instituted by God over the Israelites was Aristocratical p. 96. Sect. 10. Aristotle was not simply for Monarchy or against Popular Government but approved or disapproved of either according to circumstances p. 102. Sect. 11. Liberty produceth Virtue Order and Stability Slavery is accompanied with Vice Weakness and Misery p. 104. Sect. 12. The Glory Virtue and Power of the Romans began and ended with their Liberty p. 112. Sect. 13. There is no disorder or prejudice in changing the name or number of Magistrates whilst the root and principle of their Power continues intire p. 117. Sect. 14. No Sedition was hurtful to Rome till through their prosperity some men gained a Power above the Laws p. 120. Sect. 15. The Empire of Rome perpetually decay'd when it fell into the hands of one man p. 123. Sect. 16. The best Governments of the World have bin composed of Monarchy Aristocracy and Democracy p. 130. Sect. 17. Good Governments admit of changes in the Superstructures whilst the Foundations remain unchangeable p. 134. Sect. 18. Xenophon in blaming the disorders of Democracies favours Aristocracies not Monarchies p. 138. Sect. 19. That corruption and venality which is natural to Courts is seldom found in Popular Governments p. 145. Sect. 20. Man's natural love to Liberty is temper'd by Reason which originally is his nature p. 151. Sect. 21. Mixed and Popular Governments preserve Peace and manage Wars better than Absolute Monarchies p. 154. Sect. 22. Commonwealths seek Peace or War according to the variety of their Constitutions p. 159. Sect. 23. That is the best Government which provides best for War p. 165. Sect. 24. Popular Governments are less subject to Civil disorders than Monarchies manage them more ably and more easily recover out of them p. 172. Sect. 25. Courts are more subject to venality and corruption than Popular Governments p. 200. Sect. 26. Civil Tumults and Wars are not the greatest evils that befal Nations p. 206. Sect. 27. The mischiefs and cruelties proceeding from Tyranny are greater than any that can come from popular or mixed Governments p. 210. Sect. 28. Men living under popular or mixed Governments are more careful of the publick Good than in Absolute Monarchies p. 215. Sect. 29. There is no assurance that the distempers of a State shall be cured by the wisdom of a Prince p. 223. Sect. 30. A Monarchy cannot be well regulated unless the Powers of the Monarch are limited by Law p. 229. Sect. 31. The Liberties of Nations are from God and Nature not from Kings p. 242. Sect. 32. The Contracts made between Magistrates and the Nations that created them were real solemn and obligatory p. 247. CHAP. III. SECT 1. Kings not being Fathers of their People nor
excelling all others in virtue can have no other just power than what the Laws give nor any title to the privileges of the Lord 's Anointed p. 250. Sect. 2. The Kings of Israel and Judah were under a Law not safely to be transgressed p. 262. Sect. 3. Samuel did not describe to the Israelites the glory of a free Monarchy but the evils the people should suffer that he might divert them from desiring a King p. 264. Sect. 4. No People can be obliged to suffer from their Kings what they have not a right to do p. 266. Sect. 5. The mischiefs suffer'd from wicked Kings are such as render it both reasonable and just for all Nations that have Virtue and Power to exert both in repelling them p. 270. Sect. 6. 'T is not good for such Nations as will have Kings to suffer them to be glorious powerful or abounding in Riches p. 273. Sect. 7. 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 p. 277. Sect. 8. Vnder the name of Tribute no more is understood than what the Law of each Nation gives to the supreme Magistrate for the defraying of publick Charges to which the customs of the Romans or sufferings of the Jews have no relation p. 283. Sect. 9. Our own Laws confirm to us the enjoyment of our native Rights p. 288. Sect. 10. The words of St. Paul enjoyning obedience to higher Powers favour all sorts of Government no less than Monarchy p. 292. Sect. 11. That which is not just is not Law and that which is not Law ought not to be obeyed p. 300. Sect. 12. The right and power of a Magistrate depends upon his institution not upon his name p. 302. Sect. 13. Laws were made to direct and instruct Magistrates and if they will not be directed to restrain them p. 305. Sect. 14. Laws are not made by Kings not because they are busied in greater matters than doing Justice but because Nations will be governed by rule and not arbitrarily p. 309. Sect. 15. A general presumption that Kings will govern well is not a sufficient security to the people p. 314. Sect. 16. 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 p. 317. Sect. 17. Kings cannot be the interpreters of the Oaths they take p. 322. Sect. 18. The next in blood to deceased Kings cannot generally be said to be Kings till they are crowned p. 330. Sect. 19. The greatest enemy of a just Magistrate is he who endeavours to invalidate the Contract between him and the people or to corrupt their manners p. 341. Sect. 20. Vnjust commands are not to be obey'd and no man is obliged to suffer for not obeying such as are against Law p. 345. Sect. 21. It cannot be for the good of the People that the Magistrate have a Power above the Law And he is not a Magistrate who has not his Power by Law 348. Sect. 22. The rigor of the Law is to be temper'd by men of known integrity and judgment and not by the Prince who may be ignorant or vicious p. 354. Sect. 23. Aristotle proves that no man is to be intrusted with an Absolute Power by shewing that no one knows how to execute it but such a man as is not to be found p. 358. Sect. 24. The Power of Augustus Cesar was not given but usurped p. 360. Sect. 25. The Regal Power was not the first in this Nation nor necessarily to be continued tho it had bin the first p. 361. Sect. 26. That the King may be entrusted with the power of chusing Judges yet that by which they act is from the Law p. 369. Sect. 27. Magna Charta was not the Original but a declaration of the English Liberties The King's Power is not restrained but created by that and other Laws and the Nation that made them can only correct the defects of them p. 370. Sect. 28. The English Nation has always bin governed by it self or its Representatives p. 379. Sect. 29. The King was never Master of the Soil p. 391. Sect. 30. Henry the first was King of England by as good a Title as any of his Predecessors or Successors p. 395. Sect. 31. Free Nations have a right of meeting when and where they please unless they deprive themselves of it p. 399. Sect. 32. The Powers of Kings are so various according to the Constitutions of several States that no consequence can be drawn to the prejudice or advantage of any one merely from the name p. 404. Sect. 33. The Liberty of a People is the Gift of God and Nature p. 406. Sect. 34. No veneration paid or honor confer'd upon a just and lawful Magistrate can diminish the liberty of a Nation p. 409. Sect. 35. The Authority given by our Law to the Acts performed by a King de facto detract nothing from the Peoples Right of creating whom they please p. 411. Sect. 36. The general revolt of a Nation cannot be called a Rebellion p. 413. Sect. 37. The English Government was not ill constituted the defects more lately observed proceeding from the change of manners and corruption of the times p. 418. Sect. 38. The power of calling and dissolving Parliaments is not simply in the King The variety of Customs in chusing Parliamentmen and the Errors a People may commit neither prove that Kings are or ought to be absolute p. 421. Sect. 39. Those Kings only are heads of the People who are good wise and seek to advance no Interest but that of the Publick p. 426. Sect. 40. Good Laws prescribe easy and safe Remedies against the Evils proceeding from the Vices or Infirmities of the Magistrate and when they fail they must be supplied p. 432. Sect. 41. The people for whom and by whom the Magistrate is created can only judg whether he rightly performs his Office or not p. 436. Sect. 42. The Person that wears the Crown cannot determine the Affairs which the Law refers to the King p. 440. Sect. 43. Proclamations are not Laws p. 445. Sect. 44. No People that is not free can substitute Delegates p. 450. Sect. 45. The Legislative Power is always Arbitrary and not to be trusted in the hands of any who are not bound to obey the Laws they make p. 455. Sect. 46. The coercive Power of the Law proceeds from the Authority of Parliament p. 457. ERRATA PAge 77. line 41. for Numbers read Members P. 113. l. 37. read Antiochus P. 197. l. 6. read acquired P. 229. l. 39. for nor read and. P. 269. l. 12. for for read from P. 282. l. 3. read should it P. 285. l. 42. read renounced P. 335. l. 41. for to read de P. 418. l. 20. for have read hâ—â— P. 429. l. 38. for them read him Potentiora Legiun quam hominum
DISCOURSES CONCERNING GOVERNMENT BY Algernon Sidney Son to Robert Earl of Leicester and Ambassador from the Commonwealth of England to Charles Gustavus King of Sweden Published from an Original Manuscript of the Author LONDON Printed and are to be sold by the Booksellers of London and Westminster MDCXCVIII THE PREFACE HOW highly the Writings of wise and good Men concerning Government have bin esteemed in all Ages the testimony of History and the preservation of so many Books composed by the Antients on that Subject do sufficiently manifest And it may be truly said that unless men have utterly abandon'd themselves to all that is detestable they have seldom attempted to detract from the worth of the Assertors of Liberty tho Ambition and other passions have influenced them to act in opposition to it When Augustus had surprised a young Roman who was related to him reading a political Discourse of Cicero he commended his judgment in that choice The History of France written by the President de Thou with a spirit of Freedom that might have bin worthy of those who had liv'd before the violation of their Liberty has bin so generally valued by men of all ranks in that Nation that'tis hard to find a Book on any important Subject which has had so many Editions And the just esteem that the Emperor Charles the fifth made of the Memoirs of Philip de Commines tho that Author has given so many instances of his detestation of Tyranny may be enough to put this matter out of dispute But if all other proof were wanting the implacable hatred and unwearied industry of the worst of men to suppress such Writings would abundantly testify their excellency That Nations should be well informed of their Rights is of the most absolute necessity because the happiness or infelicity of any People intirely depends upon the enjoyment or deprivation of Liberty which is so invincibly proved in the following Discourses that to endeavour to make it more clear would be an unpardonable presumption If any man think the publication of this Work to be unseasonable at this time he is desired to consider that as men expect good Laws only from a good Government so the Reign of a Prince whose Title is founded upon the principle of Liberty which is here defended cannot but be the most proper if not the only time to inform the People of their just Rights that from a due sense of their inestimable value they may be encouraged to assert them against the attempts of ill men in time to come 'T is not necessary to say any thing concerning the Person of the Author He was so well known in the world so universally esteemed by those who knew how to set a just value upon true Merit and will appear so admirable in the following Discourses as not to stand in need of a flattering Panegyrick But it may not be amiss to say something of the Discourses now published The Paper delivered to the Sheriffs immediately before his death informs us that he had left a Large and a Lesser Treatise written against the Principles contained in Filmer's Book and that a small part of the lesser Treatise had bin produced for evidence against him at his Trial. 'T is there also said that the lesser Treatise neither was nor probably ever should have bin finished This therefore is the Large Work mentioned in that Paper and not the Lesser upon part of which the wicked Sentence pronounc'd and executed against him was grounded It remains only to add a few words for satisfaction of the Publick that these Discourses are genuine And here I shall not need to say that they were put into the hands of a Person of eminent Quality and Integrity by the Author himself and that the Original is in the judgment of those who knew him best all written by his own hand His inimitable manner of treating this noble Subject is instead of a thousand demonstrations that the Work can belong to no other than the Great Man whose name it bears DISCOURSES CONCERNING GOVERNMENT CHAP. I. SECTION I. INTRODUCTION HAVING lately seen a Book intituled Patriarcha written by Sir Robert Filmer concerning the Universal and undistinguished Right of all Kings I thought a time of leisure might be well employed in examining his Doctrine and the Questions arising from it which seem so far to concern all Mankind that besides the influence upon our future Life they may be said to comprehend all that in this World deserves to be cared for If he say true there is but one Government in the World that can have any thing of Justice in it and those who have hitherto bin esteemed the best and wisest of Men for having constituted Commonwealths or Kingdoms and taken much pains so to proportion the Powers of several Magistracies that they might all concur in procuring the Publick Good or so to divide the Powers between the Magistrates and People that a well-regulated Harmony might be preserved in the whole were the most unjust and foolish of all Men. They were not builders but overthrowers of Governments Their business was to set up Aristocratical Democratical or mixed Governments in opposition to that Monarchy which by the immutable Laws of God and Nature is imposed upon Mankind or presumptuously to put Shackles upon the Monarch who by the same Laws is to be absolute and uncontrolled They were rebellious and disobedient Sons who rose up against their Father and not only refused to hearken to his Voice but made him bend to their Will In their opinion such only deserved to be called Good Men who endeavoured to be good to Mankind or to that Country to which they were more particularly related and in as much as that Good consists in a felicity of Estate and perfection of Person they highly valued such as had endeavoured to make Men better wiser and happier This they understood to be the end for which Men enter'd into Societies And tho Cicero says that Commonwealths were instituted for the obtaining of Justice he contradicts them not but comprehends all in that word because 't is just that whosoever receives a Power should employ it wholly for the accomplishment of the Ends for which it was given This Work could be performed only by such as excelled in Virtue but lest they should deflect from it no Government was thought to be well constituted unless the Laws prevailed above the Commands of Men and they were accounted as the worst of Beasts who did not prefer such a Condition before a subjection to the fluctuating and irregular Will of a Man If we believe Sir Robert all this is mistaken Nothing of this kind was ever left to the choice of Men. They are not to enquire what conduces to their own good God and Nature have put us into a way from which we are not to swerve We are not to live to him nor to our selves but to the Master that he hath set over us One Government
is established over all and no Limits can be set to the Power of the Person that manages it This is the Prerogative or as another Author of the same stamp calls it The Royal Charter granted to Kings by God They all have an equal right to it Women and Children are Patriarchs and the next in Blood without any regard to Age Sex or other Qualities of the Mind or Body are Fathers of as many Nations as fall under their power We are not to examine whether he or she be young or old virtuous or vicious sober minded or stark mad the Right and Power is the same in all Whether Virtue be exalted or suppressed whether he that bears the Sword be a Praise to those that do well and a Terror to those that do evil or a Praise to those that do evil and a Terror to such as do well it concerns us not for the King must not lose his Right nor have his Power diminished on any account I have bin sometimes apt to wonder how things of this nature could enter into the head of any Man Or if no wickedness or folly be so great but some may fall into it I could not well conceive why they should publish it to the World But these thoughts ceased when I considered that a People from all Ages in love with Liberty and desirous to maintain their own Privileges could never be brought to resign them unless they were made to believe that in Conscience they ought to do it which could not be unless they were also perswaded to believe that there was a Law set to all Mankind which none might transgress and which put the examination of all those Matters out of their power This is our Author's Work By this it will appear whose Throne he seeks to advance and whose Servant he is whilst he pretends to serve the King And that it may be evident he hath made use of Means sutable to the Ends proposed for the Service of his great Master I hope to shew that he hath not used one Argument that is not false nor cited one Author whom he hath not perverted and abused Whilst my work is so to lay open these Snares that the most simple may not be taken in them I shall not examin how Sir Robert came to think himself a Man fit to undertake so great a work as to destroy the principles which from the beginning seem to have bin common to all Mankind but only weighing the Positions and Arguments that he alledgeth will if there be either truth or strength in them confess the discovery comes from him that gave us least reason to expect it and that in spight of the Antients there is not in the world a piece of Wood out of which a Mercury may not be made SECT II. The common Notions of Liberty are not from School Divines but from Nature IN the first lines of his Book he seems to denounce War against Mankind endeavouring to overthrow the principle of Liberty in which God created us and which includes the chief advantages of the life we enjoy as well as the greatest helps towards the felicity that is the end of our hopes in the other To this end he absurdly imputes to the School Divines that which was taken up by them as a common notion written in the heart of every Man denied by none but such as were degenerated into Beasts from whence they might prove such Points as of themselves were less evident Thus did Euclid lay down certain Axioms which none could deny that did not renounce common Sense from whence he drew the proofs of such Propositions as were less obvious to the Understanding and they may with as much reason be accused of Paganism who say that the whole is greater than a part that two halfs make the whole or that a streight Line is the shortest way from Point to Point as to say that they who in Politicks lay such Foundations as have been taken up by Schoolmen and others as undeniable Truths do therefore follow them or have any regard to their Authority Tho the Schoolmen were corrupt they were neither stupid nor unlearned They could not but see that which all men saw nor lay more approved Foundations than That Man is naturally free That he cannot justly be deprived of that Liberty without cause and that he doth not resign it or any part of it unless it be in consideration of a greater good which he proposes to himself But if he doth unjustly impute the invention of this to School Divines he in some measure repairs his Fault in saying This hath been fostered by all succeeding Papists for good Divinity The Divines of the Reformed Churches have entertained it and the Common People every where tenderly embrace it That is to say all Christian Divines whether Reformed or Unreformed do approve it and the People every where magnify it as the height of human felicity But Filmer and such as are like to him being neither Reformed nor Unreformed Christians nor of the People can have no title to Christianity and in as much as they set themselves against that which is the height of human Felicity they declare themselves Enemies to all that are concern'd in it that is to all Mankind But says he They do not remember that the desire of Liberty was the first cause of the fall of Man and I desire it may not be forgotten that the Liberty asserted is not a Licentiousness of doing what is pleasing to every one against the command of God but an exemption from all human Laws to which they have not given their assent If he would make us believe there was any thing of this in Adam's Sin he ought to have proved that the Law which he transgressed was imposed upon him by Man and consequently that there was a Man to impose it for it will easily appear that neither the Reformed or Unreformed Divines nor the People following them do place the felicity of Man in an exemption from the Laws of God but in a most perfect conformity to them Our Saviour taught us not to fear such as could kill the Body but him that could kill and cast into Hell And the Apostle tells us that we should obey God rather than Man It hath bin ever hereupon observed that they who most precisely adhere to the Laws of God are least sollicitous concerning the commands of men unless they are well grounded and those who most delight in the glorious Liberty of the Sons of God do not only subject themselves to him but are most regular observers of the just Ordinances of Man made by the consent of such as are concerned according to the Will of God The error of not observing this may perhaps deserve to be pardoned in a Man that had read no Books as proceeding from ignorance if such as are grosly ignorant can be excused when they take upon them to write of such matters as require the highest knowledg But
secured their beloved Liberty by casting all into the King's hands We owe the discovery of these Secrets to our Author who after having so gravely declared them thinks no offence ought to be taken at the freedom he assumes of examining things relating to the Liberty of Mankind because he hath the right which is common to all But he ought to have considered that in asserting that right to himself he allows it to all Mankind And as the temporal good of all men consists in the preservation of it he declares himself to be a mortal Enemy to those who endeavour to destroy it If he were alive this would deserve to be answered with Stones rather than Words He that oppugns the publick Liberty overthrows his own and is guilty of the most brutish of all Follies whilst he arrogates to himself that which he denies to all men I cannot but commend his Modesty and Care not to detract from the worth of learned men but it seems they were all subject to error except himself who is rendred infallible through Pride Ignorance and Impudence But if Hooker and Aristotle were wrong in their Fundamentals concerning natural Liberty how could they be in the right when they built upon it Or if they did mistake how can they deserve to be cited or rather why is such care taken to pervert their sense It seems our Author is by their errors brought to the knowledge of the Truth Men have heard of a Dwarf standing upon the Shoulders of a Giant who saw farther than the Giant but now that the Dwarf standing on the ground sees that which the Giant did overlook we must learn from him If there be sense in this the Giant must be blind or have such eyes only as are of no use to him He minded only the things that were far from him These great and learned men mistook the very principle and foundation of all their Doctrine If we will believe our Author this misfortune befel them because they too much trusted to the Schoolmen He names Aristotle and I presume intends to comprehend Plato Plutarch Thucydides Xenophon Polybius and all the antient Grecians Italians and others who asserted the natural freedom of Mankind only in imitation of the Schoolmen to advance the power of the Pope and would have compassed their design if Filmer and his Associates had not opposed them These men had taught us to make the unnatural distinction between Royalist and Patriot and kept us from seeing That the relation between King and People is so great that their well being is reciprocal If this be true how came Tarquin to think it good for him to continue King at Rome when the People would turn him out or the People to think it good for them to turn him out when he desired to continue in Why did the Syracusians destroy the Tyranny of Dionysius which he was not willing to leave till he was pulled out by the heels How could Nero think of burning Rome Or why did Caligula wish the People had but one Neck that he might strike it off at one blow if their Welfare was thus reciprocal 'T is not enough to say These were wicked or mad men for other Princes may be so also and there may be the same reason of differing from them For if the proposition be not universally true 't is not to be received as true in relation to any till it be particularly proved and then 't is not to be imputed to the quality of Prince but to the personal vertue of the Man I do not find any great matters in the passages taken out of Bellarmin which our Author says comprehend the strength of all that ever he had heard read or seen produced for the natural Liberty of the Subject but he not mentioning where they are to be found I do not think my self obliged to examin all his Works to see whether they are rightly cited or not however there is certainly nothing new in them We see the same as to the substance in those who wrote many Ages before him as well as in many that have lived since his time who neither minded him nor what he had written I dare not take upon me to give an account of his Works having read few of them but as he seems to have laid the foundation of his Discourses in such common Notions as were assented to by all Mankind those who follow the same method have no more regard to Jesuitism and Popery tho he was a Jesuit and a Cardinal than they who agree with Faber and other Jesuits in the principles of Geometry which no sober Man did ever deny SECT VI. God leaves to Man the choice of Forms in Government and those who constitute one Form may abrogate it BUT Sir Robert desires to make Observations on Bellarmin's words before he examines or refutes them and indeed it were not possible to make such stuff of his Doctrin as he dos if he had examined or did understand it First he very wittily concludes That if by the Law of God the Power be immediately in the People God is the Author of a Democracy And why not as well as of a Tyranny Is there any thing in it repugnant to the being of God Is there more reason to impute to God Caligula's Monarchy than the Democracy of Athens Or is it more for the Glory of God to assert his Presence with the Ottoman or French Monarchs than with the popular Governments of the Switsers and Grisons Is Pride Malice Luxury and Violence so sutable to his Being that they who exercise them are to be reputed his Ministers And is Modesty Humility Equality and Justice so contrary to his Nature that they who live in them should be thought his Enemies Is there any absurdity in saying that since God in Goodness and Mercy to Mankind hath with an equal hand given to all the benefit of Liberty with some measure of understanding how to employ it 't is lawful for any Nation as occasion shall require to give the exercise of that Power to one or more Men under certain Limitations or Conditions or to retain it in themselves if they thought it good for them If this may be done we are at end of all Controversies concerning one Form of Government established by God to which all Mankind must submit and we may safely conclude that having given to all Men in some degree a capacity of judging what is good for themselves he hath granted to all likewise a liberty of inventing such Forms as please them best without favouring one more than another His second Observation is grounded upon a Falsity in matter of Fact Bellarmin dos not say that Democracy is an Ordinance of God more than any other Government nor that the People have no Power to make use of their Right but that they do that is to say ordinarily transmit the exercise of it to one or more And 't is certain they do sometimes especially in small Cities
retain it in themselves But whether that were observed or not by Bellarmin makes nothing to our Cause which we defend and not him The next Point is subtile and he thinks thereby to have brought Bellarmin and such as agree with his Principle to a Nonplus He doubts who shall judg of the lawful Cause of changing the Government and says It is a pestilent Conclusion to place that Power in the Multitude But why should this be esteemed pestilent or to whom If the allowance of such a Power to the Senate was pestilent to Nero it was beneficial to Mankind and the denial of it which would have given to Nero an opportunity of continuing in his Villanies would have been pestilent to the best Men whom he endeavoured to destroy and to all others that received benefit from them But this Question depends upon another for if Governments are constituted for the Pleasure Greatness or Profit of one Man he must not be interrupted for the opposing of his Will is to overthrow the Institution On the other side if the Good of the governed be sought care must be taken that the End be accomplished tho it be with the prejudice of the Governor If the Power be originally in the Multitude and one or more Men to whom the exercise of it or a part of it was committed had no more than their Brethren till it was conferred on him or them it cannot be believed that rational Creatures would advance one or a few of their Equals above themselves unless in consideration of their own Good and then I find no inconvenience in leaving to them a right of judging whether this be duly performed or not We say in general He that institutes may also abrogate most especially when the Institution is not only by but for himself If the Multitude therefore do institute the Multitude may abrogate and they themselves or those who succeed in the same Right can only be fit Judges of the performance of the Ends of the Institution Our Author may perhaps say The publick Peace may be hereby disturbed but he ought to know There can be no Peace where there is no Justice nor any Justice if the Government instituted for the good of a Nation be turned to its ruin But in plain English the Inconvenience with which such as he endeavour to afright us is no more than that He or They to whom the Power is given may be restrained or chastised if they betray their Trust which I presume will displease none but such as would rather submit Rome with the best part of the World depending upon it to the Will of Caligula or Nero than Caligula or Nero to the Judgment of the Senate and People that is rather to expose many great and brave Nations to be destroyed by the rage of a savage Beast than subject that Beast to the Judgment of all or the choicest Men of them who can have no interest to pervert them or other reason to be severe to him than to prevent the Mischiefs he would commit and to save the People from ruin In the next place he recites an Argument of Bellarmin That 't is evident in Scripture God hath ordained Powers but God hath given them to no particular Person because by Nature all Men are equal therefore he hath given Power to the People or Multitude I leave him to untie that Knot if he can but as 't is usual with Impostors he goes about by Surmises to elude the Force of his Argument pretending that in some other place he had contradicted himself and acknowledged that every Man was Prince of his Posterity because that if many Men had bin created together they ought all to have bin Princes of their Posterity But 't is not necessary to argue upon Passages cited from Authors when he that cites them may be justly suspected of Fraud and neither indicates the Place nor Treatise lest it should be detected most especially when we are no way concerned in the Author's Credit I take Bellarmin's first Argument to be strong and if he in some place did contradict it the hurt is only to himself but in this Particular I should not think he did it tho I were sure our Author had faithfully repeated his words for in allowing every Man to be Prince of his Posterity he only says every Man should be chief in his own Family and have a Power over his Children which no man denies But he dos not understand Latin who thinks that the word Princeps doth in any degree signify an absolute Power or a right of transmitting it to his Heirs and Successors upon which the Doctrine of our Author wholly depends On the contrary The same Law that gave to my Father a Power over me gives me the like over my Children and if I had a thousand Brothers each of them would have the same over their Children Bellarmin's first Argument therefore being no way enervated by the alledged Passage I may justly insist upon it and add That God hath not only declared in Scripture but written on the Heart of every Man that as it is better to be clothed than to go naked to live in a House than to lie in the Fields to be defended by the united Force of a Multitude than to place the hopes of his Security solely in his own strength and to prefer the Benefits of Society before a savage and barbarous Solitude He also taught them to frame such Societies and to establish such Laws as were necessary to preserve them And we may as reasonably affirm that Mankind is for ever obliged to use no other Clothes than leather Breeches like Adam to live in hollow Trees and eat Acorns or to seek after the Model of his House for a Habitation and to use no Arms except such as were known to the Patriarchs as to think all Nations for ever obliged to be governed as they governed their Families This I take to be the genuine sense of the Scripture and the most respectful way of interpreting the Places relating to our purpose 'T is hard to imagine that God who hath left all things to our choice that are not evil in themselves should tie us up in this and utterly incredible that he should impose upon us a necessity of following his Will without declaring it to us Instead of constituting a Government over his People consisting of many Parts which we take to be a Model fit to be imitated by others he might have declared in a word That the eldest Man of the eldest Line should be King and that his Will ought to be their Law This had bin more sutable to the Goodness and Mercy of God than to leave us in a dark Labyrinth full of Precipices or rather to make the Government given to his own People a false Light to lead us to destruction This could not be avoided if there were such a thing as our Author calls a Lord Paramount over his Childrens Children to all
Right we do not know who is near to him All Mankind must inherit the Right to which every one hath an equal title and that which is Dominion if in one when 't is equally divided among all men is that universal Liberty which I assert Wherefore I leave it to the choice of such as have inherited our Author's opinions to produce this Jew or Turk that ought to be Lord of the whole Earth or to prove a better title in some other person and to perswade all the Princes and Nations of the World to submit If this be not done it must be confessed this Paternal Right is a meer whimsical Fiction and that no man by birth hath a Right above another or can have any unless by the concession of those who are concerned If this right to an universal Empire be divisible Noah did actually divide it among his three Sons Seventy and two absolute Monarchs did at once arise out of the Multitude that had assembled at Babel Noah nor his Sons nor any of the holy Seed nor probably any elder than Nimrod having bin there many other Monarchs must necessarily have arisen from them Abraham as our Author says was a King Lot must have bin so also for they were equals his Sons Ammon and Moab had no dependance upon the descendents of Abraham Ismael and Esau set up for themselves and great Nations came of them Abraham's Sons by Keturah did so also that is to say every one as soon as he came to be of age to provide for himself did so without retaining any dependence upon the Stock from whence he came Those of that Stock or the head of it pretended to no Right over those who went from them Nay nearness in Blood was so little regarded that tho Lot was Abraham's Brother's Son Eliezer his Servant had bin his Heir if he had died childless The like continued amongst Jacob's Sons no Jurisdiction was given to one above the rest an equal division of Land was made amongst them Their Judges and Magistrates were of several Tribes and Families without any other preference of one before another than what did arise from the advantages God had given to any particular person This I take to be a proof of the utmost extent and certainty that the equality amongst Mankind was then perfect He therefore that will deny it to be so now ought to prove that neither the Prophets Patriarchs or any other men did ever understand or regard the Law delivered by God and Nature to Mankind or that having bin common and free at the first and so continued for many hundreds of years after the Flood it was afterwards abolished and a new one introduced He that asserts this must prove it but till it does appear to us when where how and by whom this was done we may safely believe there is no such thing and that no man is or can be a Lord amongst us till we make him so and that by nature we are all Brethren Our Author by endeavouring farther to illustrate the Patriarchical Power destroys it and cannot deny to any man the Right which he acknowledges to have bin in Ismael and Esau. But if every man hath a Right of setting up for himself with his Family or before he has any he cannot but have a right of joining with others if he pleases As his joining or not joining with others and the choice of those others depends upon his own will he cannot but have a right of judging upon what conditions 't is good for him to enter into such a Society as must necessarily hinder him from exercising the right which he has originally in himself But as it cannot be imagined that men should generally put such Fetters upon themselves unless it were in expectation of a greater good that was thereby to accrue to them no more can be required to prove that they do voluntarily enter into these Societies institute them for their own good and prescribe such rules and forms to them as best please themselves without giving account to any But if every man be free till he enter into such a Society as he chuseth for his own good and those Societies may regulate themselves as they think fit no more can be required to prove the natural equality in which all men are born and continue till they resign it as into a common stock in such measure as they think fit for the constituting of Societies for their own good which I assert and our Author denies SECT XIII There was no shadow of a paternal Kingdom amongst the Hebrews nor precept for it OUr Author is so modest to confess that Jacob's Kingdom consisting of seventy two persons was swallowed up by the power of the greater Monarch Pharaoh But if this was an Act of Tyranny 't is strange that the sacred and eternal Right grounded upon the immutable Laws of God and Nature should not be restored to God's chosen People when he delivered them from that Tyranny Why was not Jacob's Monarchy conferred upon his right Heir How came the People to neglect a point of such importance Or if they did forget it why did not Moses put them in mind of it Why did not Jacob declare to whom it did belong Or if he is understood to have declared it in saying the Scepter should not depart from Judah why was it not delivered into his hands or into his Heirs If he was hard to be found in a people of one kindred but four degrees removed from Jacob their head who were exact in observing Genealogies how can we hope to find him after so many thousand years when we do not so much as know from whom we are derived Or rather how comes that Right which is eternal and universal to have bin nipp'd in the bud and so abolished before it could take any effect in the World as never to have bin heard of amongst the Gentiles nor the People of God either before or after the Captivity from the death of Jacob to this day This I assert and I give up the Cause if I do not prove it To this end I begin with Moses and Aaron the first Rulers of the People who were neither of the eldest Tribe according to birth nor the disposition of Jacob if he did or could give it to any nor were they of the eldest line of their own Tribe and even between them the Superiority was given to Moses who was the younger as 't is said I have made thee a God to Pharaoh and Aaron thy Brother shall be thy Prophet If Moses was a King as our Author says but I deny and shall hereafter prove the matter is worse He must have bin an Usurper of a most unjust Dominion over his Brethren and this Patriarchical power which by the Law of God was to be perpetually fixed in his Descendents perished with him and his Sons continued in an obscure rank amongst the Levites Joshua of the Tribe of Ephraim succeeded him
and good or to subject the best to the rage of the worst If there be any Family therefore in the world that can by the Law of God and Nature distinct from the Ordinance of Man pretend to an hereditary Right of Dominion over any People it must be one that never did and never can produce any person that is not free from all the Infirmities and Vices that render him unable to exercise the Sovereign Power and is endowed with all the Vertues required to that end or at least a promise from God verified by experience that the next in Blood shall ever be able and fit for that work But since we do not know that any such hath yet appeared in the World we have no reason to believe that there is or ever was any such and consequently none upon whom God hath conferred the Rights that cannot be exercised without them If there was no shadow of a Paternal Right in the Institution of the Kingdoms of Saul and David there could be none in those that succeeded Rehoboam could have no other than from Solomon When he reigned over two Tribes and Jeroboam over ten 't is not possible that both of them could be the next Heir of their last common Father Jacob and 't is absurd to say that ought to be reputed which is impossible for our thoughts are ever to be guided by Truth or such an appearance of it as doth perswade or convince us The same Title of Father is yet more ridiculously or odiously applied to the succeeding Kings Baasha had no other Title to the Crown than by killing Nadab the Son of Jeroboam and destroying his Family Zimri purchased the same honour by the slaughter of Elah when he was drunk and dealing with the House of Baasha as he had done with that of Jeroboam Zimri burning himself transferred the same to Omri as a reward for bringing him to that extremity As Jehu was more fierce than these he seems to have gained a more excellent recompence than any since Jeroboam even a conditional Promise of a perpetual Kingdom but falling from these glorious Privileges purchased by his zeal in killing two wicked Kings and above one hundred of their Brethren Shallum inherited them by destroying Zachary and all that remained of his Race This in plain English is no less than to say that whosoever kills a King and invades a Crown tho the act and means of accomplishing it be never so detestable dos thereby become Father of his Country and Heir of all the divine Privileges annexed to that glorious Inheritance And tho I cannot tell whether such a Doctrine be more sottish monstrous or impious I dare affirm that if it were received no King in the World could think himself safe in his Throne for one day They are already encompassed with many dangers but lest Pride Avarice Ambition Lust Rage and all the Vices that usually reign in the hearts of worldly men should not be sufficient to invite them perpetually to disturb Mankind through the desire of gaining the Power Riches and Splendor that accompanies a Crown our Author proposes to them the most sacred Privileges as a reward of the most execrable Crimes He that was stirred up only by the violence of his own Nature thought that a Kingdom could never be bought at too dear a rate Pro Regno velim Patriam Penates conjugem flammis dare Imperia precio quolibet constant bene Senec. Theb. But if the sacred Character of God's Anointed or Vicegerent and Father of a Country were added to the other Advantages that follow the highest Fortunes the most modest and just men would be filled with fury that they might attain to them Nay it may be even the best would be the most forward in conspiring against such as reigned They who could not be tempted with external Pleasures would be most in love with divine Privileges and since they should become the sacred Ministers of God if they succeeded and Traitors or Rogues only if they miscarried their only care would be so to lay their Designs that they might be surely executed This is a Doctrine worthy of Filmer's Invention and Heylin's Approbation which being well weighed will shew to all good and just Kings how far they are obliged to those who under pretence of advancing their Authority fill the minds of men with such Notions as are so desperately pernicious to them SECT XVI The Antients chose those to be Kings who excelled in the Vertues that are most beneficial to Civil Societies IF the Israelites whose Lawgiver was God had no King in the first Institution of their Government 't is no wonder that other Nations should not think themselves obliged to set up any if they who came all of one stock and knew their Genealogies when they did institute Kings had no regard to our Author 's Chimerical right of Inheritance nor were taught by God or his Prophets to have any 't is not strange that Nations who did not know their own Original and who probably if not certainly came of several Stocks never put themselves to the trouble of seeking one who by his birth deserved to be preferred before others and if the various Changes happening in all Kingdoms whereby in process of time the Crowns were transported into divers Families to which the Right of Inheritance could not without the utmost impiety and madness be imputed such a fancy certainly could only enter into the heads of Fools and we know of none so foolish to have harbour'd it The Grecians amongst others who sollowed the Light of Reason knew no other original Title to the Government of a Nation than that Wisdom Valour and Justice which was beneficial to the People These Qualities gave beginning to those Governments which we call Heroum Regna and the veneration paid to such as enjoyed them proceeded from a grateful sense of the good received from them They were thought to be descended from the Gods who in vertue and beneficence surpassed other men The same attended their Descendents till they came to abuse their Power and by their Vices shewed themselves like to or worse than others Those Nations did not seek the most antient but the most worthy and thought such only worthy to be preferred before others who could best perform their Duty The Spartans knew that Hercules and Achilles were not their Fathers for they were a Nation before either of them were born but thinking their Children might be like to them in valour they brought them from Thebes and Epirus to be their Kings If our Author is of another opinion I desire to know whether the Heraclidae or the AEacidae were or ought to be reputed Fathers of the Lacedemonians for if the one was the other was not The same method was followed in Italy and they who esteemed themselves Aborigines Qui rupto robore nati Compositive Luto nullos habuere parentes Juven Sat. 6. could not set up one to govern them under the Title of
Parent They could pay no veneration to any Man under the name of a common Father who thought they had none and they who esteemed themselves equal could have no reason to prefer any one unless he were distinguished from others by the Vertues that were beneficial to all This may be illustrated by matters of fact Romulus and Remus the Sons of a Nun constuprated as is probable by a lusty Soldier who was said to be Mars for their vigour and valour were made heads of a gathered People We know not that ever they had any Children but we are sure they could not be Fathers of the People that flocked to them from several places nor in any manner be reputed Heirs of him or them that were so for they never knew who was their own Father and when their Mother came to be discovered they ought to have bin Subjects to Amulius or Numitor when they had slain him They could not be his Heirs whilst he lived and were not when he died The Government of the Latins continued at Alba and Romulus reigned over those who joined with him in building Rome The Power not coming to him by Inheritance must have bin gained by Force or conferred upon him by Consent It could not be acquired by Force for one Man could not force a multitude of fierce and valiant men as they appear to have bin It must therefore have bin by Consent And when he aimed at more Authority than they were willing to allow they slew him He being dead they fetched Numa from among the Sabines He was not their Father nor Heir to their Father but a Stranger not a Conqueror but an unarmed Philosopher Tullus Hostilius had no other Title Ancus Martius was no way related to such as had reigned The first Tarquin was the Son of a banished Corinthian Servius Tullus came to Rome in the belly of his captive Mother and could inherit nothing but Chains from his vanquished Father Tarquin the Proud murdered him and first took upon himself the Title of King sine jussu Populi If this murder and usurpation be called a Conquest and thought to create a Right the effect will be but small The Conqueror was soon conquered banished and his Sons slain after which we hear no more of him or his Descendants Whatsoever he gained from Servius or the People was soon lost and did accrue to those that conquered and ejected him and they might retain what was their own or confer it upon one or more in such manner and measure as best pleased themselves If the Regal Power which our Author says was in the Consuls could be divided into two parts limited to a Year and suffer such restrictions as the People pleased to lay upon it they might have divided it into as many parcels and put it into such form as best suted with their inclinations and the several Magistracies which they did create for the exercise of the Kingly and all other Powers shews that they were to give account to none but themselves The Israelites Spartans Romans and others who thus framed their Governments according to their own Will did it not by any peculiar Privilege but by a universal Right conferred upon them by God and Nature They were made of no better Clay than others They had no Right that dos not as well belong to other Nations that is to say The Constitution of every Government is referred to those who are concerned in it and no other has any thing to do with it Yet if it be asserted that the Government of Rome was Paternal or they had none at all I desire to know how they came to have six Fathers of several Families whilst they lived under Kings and two or more new ones every Year afterwards Or how they came to be so excellent in Vertue and Fortune as to conquer the best part of the World if they had no Government Hobbes indeed doth scurrilously deride Cicero Plato and Aristotle Caeterosque Romanae Graecae Anarchiae fautores But 't is strange that this Anarchy which he resembles to a Chaos full of darkness and confusion that can have no strength or regular Action should overthrow all the Monarchies that came within their reach If as our Author says the best order greatest strength and most stability be in them It must therefore be confessed that these Governments are in their various Forms rightly instituted by several Nations without any regard to Inheritance or that these Nations have had no Governments and were more strong vertuous and happy without Government than under it which is most absurd But if Governments arise from the Consent of Men and are instituted by Men according to their own Inclinations they did therein seek their own good sor the Will is ever drawn by some real Good or the appearance of it This is that which man seeks by all the regular or irregular motions of his mind Reason and Passion Vertue and Vice do herein concur tho they differ vastly in the Objects in which each of them thinks this Good to consist A People therefore that sets up Kings Dictators Consuls Pretors or Emperors dos it not that they may be great glorious rich or happy but that it may be well with themselves and their Posterity This is not accomplished simply by setting one a few or more men in the administration of Powers but by placing the Authority in those who may rightly perform their Office This is not every man's Work Valour Integrity Wisdom Industry Experience and Skill are required for the management of those Military and Civil Affairs that necessarily fall under the care of the chief Magistrates He or they therefore may reasonably be advanced above their Equals who are most fit to perform the Duties belonging to their Stations in order to the publick Good for which they were instituted Marius Sylla Catiline Julius or Octavius Caesar and all those who by force or fraud usurped a Dominion over their Brethren could have no Title to this Right much less could they become Fathers of the People by using all the most wicked means that could well be imagined to destroy them and not being regularly chosen for their Vertues or the opinion of them nor preferred on account of any Prerogative that had bin from the beginning annexed to their Families they could have no other Right than Occupation could confer upon them If this can confer a Right there is an end of all Disputes concerning the Laws of God or Man If Julius and Octavius Caesar did successively become Lords and Fathers of their Country by slaughtering almost all the Senate and such Persons as were eminent for Nobility or Vertue together with the major part of the People it cannot be denied that a Thief who breaks into his Neighbour's House and kills him is justly Master of his Estate and may exact the same obedience from his Children that they render to their Father If this Right could be transferred to Tiberius either
through the malice of Octavius or the fraud of his Wise a wet Blanket laid over his face and a few corrupted Soldiers could invest Caligula with the same A vile Rascal pulling Claudius out by the heels from behind the Hangings where he had hid himself could give it to him A dish of Mushrooms well seasoned by the infamous Strumpet his Wife and a Potion prepared for Britannicus by Locusta could transfer it to her Son who was a stranger to his Blood Galba became Heir to it by driving Nero to despair and death Two common Soldiers by exciting his Guards to kill him could give a just Title to the Empire of the World to Otho who was thought to be the worst man in it If a Company of Villains in the German Army thinking it as fit for them as others to create a Father of Mankind could confer the Dignity upon Vitellius and if Vespasian causing him to be killed and thrown into a Jakes less impure than his Life did inherit all the glorious and sacred Privileges belonging to that Title 't is in vain to inquire after any man's right to any thing If there be such a thing as Right or Wrong to be examined by men and any Rules set whereby the one may be distinguished from the other these Extravagancies can have no effect of Right Such as commit them are not to be looked upon as Fathers but as the most mortal Enemies of their respective Countries No Right is to be acknowledged in any but such as is conferred upon them by those who have the right of conferring and are concerned in the exercise of the Power upon such conditions as best please themselves No obedience can be due to him or them who have not a right of commanding This cannot reasonably be conferred upon any that are not esteemed willing and able rightly to execute it This ability to perform the highest Works that come within the reach of Men and integrity of Will not to be diverted from it by any temptation or consideration of private Advantages comprehending all that is most commendable in man we may easily see that whensoever men act according to the Law of their own Nature which is Reason they can have no other rule to direct them in advancing one above another than the opinion of a man's Vertue and Ability best to perform the Duty incumbent upon him that is by all means to procure the good of the People committed to his charge He is only fit to conduct a Ship who understands the Art of a Pilot When we are sick we seek the assistance of such as are best skill'd in Physick The Command of an Army is prudently conferred upon him that hath most Industry Skill Experience and Valour In like manner He only can according to the rules of Nature be advanced to the Dignities of the World who excels in the Vertues required for the performance of the Duties annexed to them for he only can answer the end of his Institution The Law of every instituted Power is to accomplish the end of its Institution as Creatures are to do the Will of their Creator and in deflecting from it overthrow their own being Magistrates are distinguished from other men by the Power with which the Law invests them for the publick Good He that cannot or will not procure that Good destroys his own being and becomes like to other men In matters of the greatest importance Detur digniori is the Voice of Nature all her most sacred Laws are perverted if this be not observed in the disposition of the Governments of mankind But all is neglected and violated if they are not put into the hands of such as excel in all manner of Vertues for they only are worthy of them and they only can have a right who are worthy because they only can perform the end for which they are instituted This may seem strange to those who have their heads infected with Filmer's whimseys but to others so certainly grounded upon Truth that Bartholomew de las Casas Bishop of Chiapa in a Treatise written by him and dedicated to the Emperor Charles the 5th concerning the Indies makes it the foundation of all his Discourse That notwithstanding his grant of all those Countries from the Pope and his pretentions to Conquest he could have no right over any of those Nations unless he did in the first place as the principal end regard their Good The reason says he is that regard is to be had to the principal End and Cause for which a supreme or universal Lord is set over them which is their good and profit and not that it should turn to their destruction and ruin for if that should be there is no doubt but from thence forward that Power would be tyrannical and unjust as tending more to the interest and profit of that Lord than to the publick good and profit of the Subjects which according to natural Reason and the Laws of God and Man is abhorred and deserves to be abhorred And in another place speaking of the Governors who abusing their Power brought many troubles and vexations upon the Indians he says They had rendred his Majesty's Government intolerable and his Yoak insupportable tyrannical and most justly abhorred I do not alledg this through an opinion that a Spanish Bishop is of more Authority than another man but to shew that these are common Notions agreed by all mankind and that the greatest Monarchs do neither refuse to hear them or to regulate themselves according to them till they renounce common sense and degenerate into Beasts But if that Government be unreasonable and abhorred by the Laws of God and Man which is not instituted for the good of those that live under it and an Empire grounded upon the Donation of the Pope which amongst those of the Roman Religion is of great importance and an entire conquest of the People with whom there had been no former Compact do degenerate into a most unjust and detestable Tyranny so soon as the supreme Lord begins to prefer his own interest or profit before the good of his Subjects what shall we say of those who pretend to a right of Dominion over free Nations as inseparably united to their Persons without distinction of Age or Sex or the least consideration of their Infirmities and Vices as if they were not placed in the Throne for the good of their People but to enjoy the Honours and Pleasures that attend the highest Fortune What name can be fit for those who have no other Title to the places they possess than the most unjust and violent Usurpation or being descended from those who for their Vertues were by the Peoples consent duly advanced to the exercise of a legitimate Power and having sworn to administer it according to the Conditions upon which it was given for the good of those who gave it turn all to their own Pleasure and Profit without any care of the Publick These
have bin peculiarly reserved to compleat the infamy of our Author for he only could acknowledg a cooptitious Father or give to another man the power of chusing him I confess that a man in his infancy may have bin exposed like Moses Cyrus Oedipus Romulus He may have bin taken in War or by the charity of some good person saved from the teeth of wild Beasts or from the Sword by which his Parents fell and may have bin educated with that care which Fathers usually have of their Children 't is reasonable that such a one in the whole course of his life should pay that veneration and obedience to him who gave him as it were a second birth which was due to his natural Father and this tho improperly may be called an Adoption But to think that any man can assume it to himself or confer it upon another and thereby arrogate to himself the Service and Obedience which by the most tender and sacred Laws of Nature we owe to those from whom we receive Birth and Education is the most preposterous folly that hitherto has ever entered into the heart of man Our Author nevertheless is not ashamed of it and gives Reasons no way unsutable to the Proposition Men are says he adopted Fathers of Provinces for their Abilities Merits or Fortunes But these Abilities can simply deserve nothing for if they are ill employed they are the worst of Vices and the most powerful Instruments of Mischief Merits in regard of another are nothing unless they be to him and he alone can merit from me the respect due to a Father who hath conferred Benefits upon me in some measure proportionable to those which we usually receive from our Fathers and the world may judg whether all the Court-Ministers and Favorites that we have known do upon this account deserve to be esteemed Fathers of Nations But to allow this on account of their Fortunes is if possible more extravagant than any thing that hath bin yet utter'd By this account Mazarin must have bin Father of the French Nation The same Right was inherited by his chast Niece and remained in her till she and her silly Husband dissipated the Treasures which her Uncle had torn from the Bowels of that People The Partizans may generally claim the same Right over the Provinces they have pillaged Old Audley Dog Smith Bp Duppa Brownloe Child Dashwood Fox c. are to be esteemed Fathers of the People of England This Doctrine is perfectly Canonical if Filmer and Heylin were good Divines and Legal if they judged more rightly touching matters of Law But if it be absurd and detestable they are to be reputed Men who by attributing the highest Honours to the vilest Wretches of the world for what they had gain'd by the most abominable means endeavour to encrease those Vices which are already come to such a height that they can by no other way be brought to a greater Daily experience too plainly shews with what rage Avarice usually fills the hearts of men There are not many destructive Villanies committed in the World that do not proceed from it In this respect 't is called Idolatry and the Root of all evil Solomon warns us to beware of such as make haste to grow rich and says they shall not be innocent But 't is no matter what the Prophets the Apostles or the wisest of men say of Riches and the ways of gaining them for our Author tells us that men of the greatest Fortunes without examining how they came to them or what use they make of them deserve to be made Fathers of Provinces But this is not his only quarrel with all that is just and good His whole Book goes directly against the Letter and Spirit of the Scripture The work of all those whom God in several Ages has raised up to announce his Word was to abate the Lusts and Passions that arise in the hearts of men to shew the vanity of worldly Enjoyments with the dangers that accompany Riches and Honours and to raise our hearts to the love of those Treasures that perish not Honest and wise men following the Light of Nature have in some measure imitated this Such as lived private lives as Plato Socrates Epictetus and others made it their business to abate mens Lusts by shewing the folly of seeking vain Honours useless Riches or unsatisfying Pleasures and those who were like to them if they were raised to supreme Magistracies have endeavoured by the severest Punishments to restrain men from committing the Crimes by which Riches are most commonly gained but Filmer and Heylin lead us into a new way If they deserve credit whosoever would become supreme Lord and Father of his Country absolute sacred and inviolable is only to kill him that is in the head of the Government Usurpation confers an equal Right with Election or Inheritance We are to look upon the Power not the Ways by which it is obtained Possession only is to be regarded and men must venerate the present Power as set up by God tho gained by Violence Treachery or Poison Children must not impose Laws upon nor examine the Actions of their Father Those who are a little more modest and would content themselves with the honour of being Fathers and Lords only of Provinces if they get Riches by the favour of the King or the favour of the King by Riches may receive that honour from him The Lord Paramount may make them peculiar Lords of each Province as sacred as himself and by that means every man shall have an immediate and a subaltern Father This would be a Spur to excite even the most sleeping Lusts and a Poison that would fill the gentlest Spirits with the most violent Furies If men should believe this there would hardly be found one of whom it might not be said Hac spe minanti fulmen occurret Jovi No more is required to fill the World with Fire and Blood than the reception of these Precepts No man can look upon that as a Wickedness which shall render him Sacred nor fear to attempt that which shall make him God's Vicegerent And I doubt whether the wickedness of filling mens heads with such Notions was ever equalled unless by him who said Ye shall not die but be as Gods But since our Author is pleased to teach us these strange things I wish he would also have told us how many men in every Nation ought to be look'd upon as adopted Fathers What proportion of Riches Ability or Merit is naturally or divinely required to make them capable of this sublime Character Whether the Right of this Chimerical Father dos not destroy that of the Natural or whether both continue in force and men thereby stand obliged in despite of what Christ said to serve two Masters For if the Right of my Artificial Father arise from any Act of the King in favour of his Riches Abilities or Merit I ought to know whether he is to excel in
which a grave Author's sense is best comprehended it will appear that all his Books of Laws and of a Commonwealth are chiefly grounded upon this That Magistrates are chosen by Societies seeking their own good and that the best men ought to be chosen for the attaining of it whereas his whole design of seeking which is the best Form of Government or what Laws do most conduce to its perfection and permanency if one Rule were by nature appointed for all and none could justly transgress it if God had designed an universal Lord over the whole world or a particular one over every Nation who could be bound by no Law were utterly absurd and they who write Books concerning Political matters and take upon them to instruct Nations how to govern themselves would be found either foolishly to mispend their time or impiously to incite people to rebel against the Ordinance of God If this can justly be imputed to Plato he is not the wise Man he is supposed to have bin and can less deserve the title of Divine which our Author gives him but if he remain justly free from such Censures it must be confessed that whilst he seeks what is good for a people and to convince them by reason that it is so he takes it for granted that they have a liberty of chusing that which appears to be the best to them He first says that this Good consists in the obtaining of Justice but farther explaining himself he shews that under the name of Justice he comprehends all that tends to their perfection and felicity in as much as every People by joining in a civil Society and creating Magistrates doth seek its own good and 't is just that he or they who are created should to the utmost of their power accomplish the end of their Creation and lead the people to Justice without which there is neither perfection nor happiness That the proper act of Justice is to give to every one his due to Man that which belongs to Man and to God that which is God's But as no man can be just or desire to be so unless he know that Justice is good nor know that it is good unless he know that original Justice and Goodness through which all that is just is just and all that is good is good 't is impossible for any man to perform the part of a good Magistrate unless he have the knowledg of God or to bring a People to Justice unless he bring them to the knowledg of God who is the Root of all Justice and Goodness If Plato therefore deserve credit he only can duly perform the part of a good Magistrate whose moral Vertues are ripened and heightned by a superinduction of Divine Knowledg The misery of Man proceeds from his being separated from God This Separation is wrought by corruption his restitution therefore to Felicity and Integrity can only be brought about by his reunion to the Good from which he is fallen Plato looks upon this as the only worthy Object of Man's desire and in his Laws and Politicks he intends not to teach us how to erect Manufactures and to increase Trade or Riches but how Magistrates may be helpful to Nations in the manner before-mentioned and consequently what Men are fit to be Magistrates If our Author therefore would make use of Plato's Doctrine to his end he ought to have proved that there is a Family in every Nation to the chief of which and successively to the next in Blood God dos ever reveal and insuse such a knowledg of himself as may render him a Light to others and failing in this all that he says is to no purpose The weakness in which we are born renders us unable to attain this Good of our selves we want help in all things especially in the greatest The fierce Barbarity of a loose multitude bound by no Law and regulated by no Discipline is wholly repugnant to it Whilst every man fears his Neighbour and has no other defence than his own strength he must live in that perpetual anxiety which is equally contrary to that happiness and that sedate temper of mind which is required for the search of it The first step towards the cure of this pestilent Evil is for many to join in one body that every one may be protected by the united force of all and the various Talents that men possess may by good discipline be rendred useful to the whole as the meanest piece of wood or stone being placed by a wise Architect conduces to the beauty of the most glorious Building But every man bearing in his own breast Affections Passions and Vices that are repugnant to this end and no man owing any submission to his Neighbour none will subject the correction or restriction of themselves to another unless he also submit to the same Rule They are rough pieces of timber or stone which 't is necessary to cleave saw or cut This is the work of a skilful Builder and he only is capable of erecting a great Fabrick who is so Magistrates are Political Architects and they only can perform the Work incumbent on them who excel in Political Vertues Nature in variously framing the minds of men according to the variety of Uses in which they may be imploy'd in order to the institution and preservation of Civil Societies must be our Guide in allotting to every one his proper work And Plato observing this Variety affirms that the Laws of Nature cannot be more absurdly violated than by giving the Government of a People to such as do not excel others in those Arts and Vertues that tend to the ultimate Ends for which Governments are instituted By this means those who are Slaves by Nature or rendred so by their Vices are often set above those that God and Nature had fitted for the highest Commands and Societies which subsist only by order fall into corruption when all Order is so preposterously inverted and the most extreme Confusion introduced This is an Evil that Solomon detested Folly is set in great dignity and the Rich sit in low places I have seen Servants upon Horses and Princes walking as Servants upon the Earth They who understand Solomon's Language will easily see that the Rich and the Princes he means are such only who are rich in Vertue and Wisdom and who ought to be preferred for those Qualities And when he says a Servant that reigneth is one of the three things the Earth cannot bear he can only mean such as deserve to be Servants for when they reign they do not serve but are served by others which perfectly agrees with what we learn from Plato and plainly shews that true Philosophy is perfectly conformable with what is taught us by those who were divinely inspired Therefore tho I should allow to our Author that Aristotle in those words It seems to some not to be natural for one Man to be Lord of all the Citizens since the City
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
to be the same in as much as it comprehended all the Freemen that is all the People for the difference between Civis and Servits is irreconcilable and no man whilst he is a Servant can be a Member of a Commonwealth for he that is not in his own power cannot have a part in the Government of others All the forementioned Northern Nations had the like customs among them The Governments they had were so instituted The utmost that any now remaining pretends to is to derive their Right from them If according to Filmer these first Assemblies could not confer it upon the first they had none Such as claim under them can inherit none from those that had none and there can be no right in all the Governments we so much venerate and nothing can tend more to their overthrow than the reception of our Author's Doctrine Tho any one Instance would be sufficient to overthrow his general negative Proposition for a Rule is not generally true if there be any just Exception against it I have alledged many and find it so easy to increase the number that there is no Nation whose Original we know out of whose Histories I will not undertake to produce the like but I have not bin solicitous precisely to distinguish which Nations have acted in their own Persons and which have made use of Delegates nor in what times they have changed from one way to the other for if any have acted by themselves the thing is possible and whatsoever is done by delegated Powers must be referred to their Principals for none can give to any a Power which they have not in themselves He is graciously pleased to confess That when men are assembled by a humane Power that Power that doth assemble them may also limit the manner of the execution of that Power c. But in Assemblies that take their Authority from the Law of Nature it is not so for what liberty or freedom is due to any man by the Law of Nature no inferior Power can alter limit or diminish No one man or multitude of men can give away the natural Right of another c. These are strong Lines and such as if there be any sense in them utterly overthrow all our Author's Doctrine for if any Assembly of men did ever take their Authority from the Law of Nature it must be of such as remaining in the intire fruition of their natural Liberty and restrained by no Contract meet together to deliberate of such matters as concern themselves and if they can be restrained by no one man or number of men they may dispose of their own Affairs as they think fit But because no one of them is obliged to enter into the Society that the rest may constitute he cannot enjoy the benefit of that Society unless he enter into it He may be gone and set up for himself or set up another with such as will agree with him But if he enter into the Society he is obliged by the Laws of it and if one of those Laws be that all things should be determined by the plurality of Voices his Assent is afterwards comprehended in all the Resolutions of that Plurality Reuben or Simeon might according to the Laws of Nature have divided themselves from their Brethren as well as Lot from Abraham or Ismael and the Sons of Keturah from Isaac but when they in hopes of having a part in the Inheritance promised to their Fathers had joined with their Brethren a few of their Descendents could not have a right by their dissent to hinder the Resolutions of the whole Body or such a part of it as by the first Agreement was to pass for an Act of the whole And the Scripture teaches us that when the Lot was fallen upon Saul they who despised him were stiled Men of Belial and the rest after his Victory over the Ammonites would have slain them if he had permitted In the like manner when a number of Men met together to build Rome any man who had disliked the design might justly have refused to join in it but when he had entred into the Society he could not by his Vote invalidate the Acts of the whole nor destroy the Rights of Romulus Numa and the others who by the Senate and People were made Kings nor those of the other Magistrates who aster their expulsion were legally created This is as much as is required to establish the natural Liberty of Mankind in its utmost extent and cannot be shaken by our Author's surmise That a Gap is thereby opened for every seditious multitude to raise a new Commonwealth For till the Commonwealth be established no multitude can be seditious because they are not subject to any humane Law and Sedition implies an unjust and disorderly opposition of that Power which is legally established which cannot be when there is none nor by him who is not a Member of the Society that makes it and when it is made such as entered into it are obliged to the Laws of it This shewing the root and foundation of Civil Powers we may judg of the use and extent of them according to the letter of the Law or the true intentional meaning of it both which declare them to be purely Human Ordinances proceeding from the will of those who seek their own good and may certainly infer that since all Multitudes are composed of such as are under some Contract or free from all no man is obliged to enter into those contracts against his own will nor obliged by any to which he dos not assent Those multitudes that enter into such Contracts and thereupon form Civil Societies act according to their own will Those that are engaged in none take their Authority from the Law of Nature their Rights cannot be limited or diminished by any one man or number of men and consequently whoever dos it or attempts the doing of it violates the most sacred Laws of God and Nature His cavils concerning Proxies and the way of using them deserve no answer as relating only to one sort of men amongst us and can have no influence upon the Laws of Nature or the proceedings of Assemblies acting according to such Rules as they set to themselves In some places they have voted all together in their own persons as in Athens In others by Tribes as in Rome Sometimes by Delegates when the number of the whole People is so great that no one place can contain them as in the Parliaments Diets General Assemblies of Estates long used in the great Kingdoms of Europe In other parts many Cities are joined together in Leagues as antiently the Achaians Etolians Samnites Tuscans and in these times the States of Holland and Cantons of Switzerland but our Author not regarding such matters in pursuance of his folly with an ignorance as admirable as his stupidity repeats his Challenge I ask says he but one Example out of the History of the whole World let
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
so many of those who had enjoy'd the same honour or might aspire to it as to bring them for his pleasure to betray their Country and as no man was ever chosen who had not given great testimonies of his Vertues so no one did ever forfeit the good opinion conceived of him Vertue was then honour'd and thought so necessarily to comprehend a sincere love and fidelity to the Commonwealth that without it the most eminent qualities were reputed vile and odious and the memory of former Services could no way expiate the guilt of conspiring against it This seeming Severity was in truth the greatest Clemency for tho our Author has the impudence to say that during the Roman Liberty the best men thrived worst and the worst best he cannot alledg one example of any eminent Roman put to death except Manlius Capitolinus from the expulsion of the Tarquins to the time of the Gracchi and the Civil Wars not long after ensuing and of very few who were banished By these means Crimes were prevented and the temptations to evil being removed Treachery was destroy'd in the root and such as might be naturally ambitious were made to see there was no other way to Honour and Power than by acting virtuously But lest this should not be sufficient to restrain aspiring men what Power soever was granted to any Magistrate the Soveraignty still remained in the People and all without exception were subject to them This may seem strange to those who think the Dictators were absolute because they are said to have bin sine provocatione but that is to be only understood in relation to other Magistrates and not to the People as is clearly proved in the case of Q. Fabius whom Papirius the Dictator would have put to death Tribunos Plebis appello says Fabius Maximus his Father provoco ad Populum eumque tibi fugienti exercitus tui fugienti Senatus judicium Judicem fero qui certe unus plusquam tua dictatura potest polletque videro cessurusne sis provocationi cui Tullus Hostilius cessit And tho the People did rather interceed for Fabius than command his deliverance that modesty did evidently proceed from an opinion that Papirius was in the right and tho they desired to save Fabius who seems to have bin one of the greatest and best men that ever the City produced they would not enervate that military Discipline to which they owed not only their greatness but their subsistence most especially when their Soveraign Authority was acknowledged by all and the Dictator himself had submitted This right of Appeals to the People was the foundation of the Roman Commonwealth laid in the days of Romulus submitted to by Hostilius in the case of Horatius and never violated till the Laws and the Liberty which they supported were overthrown by the power of the Sword This is confirmed by the speech of Metellus the Tribune who in the time of the second Carthaginian War causelesly disliking the Proceedings of Q. Fabius Maximus then Dictator in a publick Assembly of the People said Quod si antiquus animus Plebi Romanae esset se audacter laturum de abrogando Q. Fabii Imperio nunc modicam rogationem promulgaturum de aequando Magistri Equitum Dictatoris jure which was done and that Action which had no precedent shews that the People needed none and that their Power being eminently above that of all Magistrates was obliged to no other rule than that of their own Will Tho I do therefore grant that a Power like to the Dictatorian limited in time circumscribed by Law and kept perpetually under the supreme Authority of the People may by vertuous and well-disciplin'd Nations upon some occasions be prudently granted to a vertuous man it can have no relation to our Author's Monarch whose Power is in himself subject to no Law perpetually exercised by himself and for his own sake whether he have any of the abilities required for the due performance of so great a work or be intirely destitute of them nothing being more unreasonable than to deduce consequences from cases which in substance and circumstances are altogether unlike but to the contrary these examples shewing that the Romans even in the time of such Magistrates as seemed to be most absolute did retain and exercise the Soveraign Power do most evidently prove that the Government was ever the same remaining in the People who without prejudice might give the Administration to one or more men as best pleased themselves and the success shews that they did it prudently SECT XIV No Sedition was hurtful to Rome till through their Prosperity some men gained a Power above the Laws LIttle pains is required to confute our Author who imputes much bloodshed to the popular Government of Rome for he cannot prove that one man was unjustly put to death or slain in any Sedition before Publius Gracchus The Foundations of the Common-wealth were then so shaken that the Laws could not be executed and whatsoever did then fall out ought to be attributed to the Monarchy for which the great men began to contend Whilst they had no other Wars than with neighbouring Nations they had a strict eye upon their Commanders and could preserve Discipline among the Soldiers but when by the excellence of their Valour and Conduct the greatest Powers of the World were subdued and for the better carrying on of foreign Wars Armies were suffered to continue in the same hands longer than the Law did direct Soldiery came to be accounted a Trade and those who had the worst designs against the Commonwealth began to favour all manner of Licentiousness and Rapine that they might gain the favour of the Legions who by that means became unruly and seditious 't was hard if not impossible to preserve a Civil equality when the Spoils of the greatest Kingdoms were brought to adorn the Houses of private men and they who had the greatest Cities and Nations to be their Dependents and Clients were apt to scorn the power of the Law This was a most dangerous Disease like those to which human Bodies are subject when they are arrived to that which Physicians call the Athletick habit proceeding from the highest perfection of Health Activity and Strength that the best Constitution by Diet and Exercise can attain Whosoever falls into them shews that he had attain'd that perfection and he who blames that which brings a State into the like condition condemns that which is most perfect among men Whilst the Romans were in the way to this no Sedition did them any hurt they were composed without Blood and those that seemed to be the most dangerous produced the best Laws But when they were arrived to that condition no Order could do them good the fatal period set to human things was come they could go no higher Summisque negatum Stare diu and all that our Author blames is not to be imputed to their Constitution but their departing from
Socrates but the People who deceived by false Witnesses against whom neither the Laws of God or Man have ever prescrib'd a sufficient defence had condemned him did so much lament their Crime when the truth was discovered to them that I doubt whether a more righteous Judgment had given better testimony of their righteous Intentions But our Author's impudence appears in the highest excess in imputing the death of Phocion to the popular state of Athens Their Forces had bin broken in the Sicilian War the City taken and the principal men slain by Lysander the remains of the most worthy destroy'd by the thirty Tyrants set up by him their ill-recovered Liberty overthrown by the Macedonians and the death of Phocion compassed by Polyperchon who with Foreign Soldiers Slaves Vagabonds and Outlaws overpower'd the People The proceedings of Rome may be more compleatly justified Coriolanus was duly condemn'd he set too great a price upon his own Valour and arrogated to himself a Power in Rome which would hardly have bin indur'd in Corioli His violence and pride overbalanced his Services and he that would submit to no Law was justly driven out from the Society which could subsist only by Law Quintius was not unlike him and Manlius Capitolinus far worse than either Their Virtues were not to be consider'd when they departed from them Consideration ought to be had of human srailty and some indulgence may be extended to those who commit Errors after having done important Services but a State cannot subsist which compensating evil Actions with good gives impunity to the most dangerous Crimes in remembrance of any Services whatever He that dos well performs his duty and ought always to do so Justice and Prudence concur in this and 't is no less just than profitable that every Action be considered by it self and such a reward or punishment allotted to it as in nature and proportion it doth best deserve This as I suppose is enough for their Cases but relates not to those of Mamercus Camillus Livius Salinator and Emylius Paulus their Virtue was compleat they were wrongfully sentenc'd But the best Princes Senate or People that ever was in the world by the deceit of evil men may and have bin drawn out of the way of Justice Yet of all the States that are known to us none was ever so free from Crimes of malice and wilful injustice none was ever guilty of so few Errors as that of Rome and none did ever give better testimonies of Repentance when they were discovered than the Romans did by the Veneration they shew'd to those worthy Persons and the Honours they conferr'd upon them asterwards Mamercus was made Dictator to repair the unjust mark of Infamy laid upon him by the Censors Camillus being recall'd from his banishment often enjoyed the same honour and died the most reverenced Man that had ever bin in that City Livius Salinator was not only made Consul after he had bin fined but the People as it were to expiate the guilt of having condemn'd him suffer'd that asperity of speech and manners which might have perswaded such as had bin less confident of his Virtue and their own that he desir'd to be reveng'd tho it were with the ruin of the City They dealt in the like manner with Paulus Emylius repairing the injury of a Fine unduly impos'd Their generosity in leaving the Tribuns in the Forum with their Accusation against Scipio Africanus and following him to celebrate an annual Sacrifice in the Capitol in commemoration of his Victory against Hannibal was no less admirable than the greatness of his mind who thought his Virtue should be so well known that no account ought to be expected from him which was an Error proceeding from a noble Root but not to be born in a well-govern'd Commonwealth The Laws that aim at the publick Good make no distinction of persons and none can be exempted from the Penalties of them otherwise than by approved Innocence which cannot appear without a Trial He that will not bend his mind to them shakes off the equality of a Citizen and usurps a Power above the Law to which no man submits upon any other condition than that none should be exempted from the power of it And Scipio being the first Roman that thus disdained the Power of the Law I do not know whether the prejudice brought upon the City by so dangerous an Example did not outweight all the Services he had done Nevertheless the people contented with his retirement to his own house and afterwards convinc'd of his innocence would probably if he had not died in a few months have brought him back with the Honours that Fate reserved for his ashes I do not at present remember any other eminent men who can be said in any respect to have thrived ill whilst the People and Senat of Rome acted freely and if this be not sufficient to clear the point I desire to know the names of those worst men that thrived best If they may have bin judged to thrive who were frequently advanced to the supreme Magistracies and enjoy'd the chief Honours I find no men so eminent as Brutus Publicola Quintius Cincinnatus and Capitolinus the two Fabii sirnamed Maximi Corvinus Torquatus Camillus and the like and if these were the worst Men that Rome produced in those Ages Valour Wisdom Industry in the Service of their Country and a most intire Love to it must have bin the worst of qualities and I presume our Author may have thought them so since they were invincible obstacles to the introduction of that Divine Monarchy which Appius Claudius the Decemvir Manlius Capitolinus Spurius Cassius Sp. Melius and some others may be thought to have affected However these instances are not to be understood as they are simply in themselves but comparatively with what has happen'd in other places under absolute Monarchies for our inquiry is not after that which is perfect well knowing that no such thing is found among men but we seek that human Constitution which is attended with the least or the most pardonable inconveniences And if we find that in the space of three hundred years whilst the Senate People and legally created Magistrates governed Rome not one worthy man was put to death not above five or six condemned to Fines by the beguiled People and those injuries repair'd by the most honourable satisfaction that could be given so that Virtue continued ever flourishing the best men that could be found were put into the chief Commands and the City was filled with more excellent men than were ever known to be in any other place And on the other side if the Emperors so soon as the Government was changed made it their business to destroy the best and so far succeeded in their design that they left none and never failed to advance the worst unless it fell out as to Queen Katherine de Medicis who is said never to have done any good but by mistake and
some few may have proved better than was intended it will appear that our Author's Assertions are in the utmost degree false Of this we need no better witness than Tacitus The Civil Wars and the Proscriptions upon which he touches are justly to be attributed to that Monarchy which was then setting up the only question being who should be the Monarch when the Liberty was already overthrown And if any eminent men escaped it was much against the will of those who had usurped the power He acknowledges his Histories to be a continued relation of the slaughter of the most illustrious Persons and that in the times of which he writes Virtue was attended with certain destruction After the death of Germanicus and his eldest Children Valerius Asiaticus Seneca Corbulo and an infinite number more who were thought most to resemble them found this to be true at the expence of their lives Nero in pursuance of the same tyrannical design murder'd Helvidius and Thraseas that he might tear up Virtue by the roots Domitian spared none willingly that had either Virtue or Reputation and tho Trajan with perhaps some other might grow up under him in the remote Provinces yet no good man could escape who came under his eye and was so eminent as to be observed by him Whilst these who were thought to be the best men that appear'd in the Roman Empire did thrive in this manner Sejanus Macro Narcissus Pallas Tigillinus Icetus Vinnius Laco and others like to them had the power of the Empire in their hands Therefore unless Mankind has bin mistaken to this day and that these who have hitherto bin accounted the worst of Villains were indeed the best men in the world and that those destroy'd by them who are thought to have bin the best were truly the worst it cannot be denied that the best men during the Liberty of Rome thrived best that good men suffer'd no indignity unless by some fraud imposed upon the well-meaning People and that so soon as the Liberty was subverted the worst men thrived best The best men were exposed to so many Calamities and Snares that it was thought a matter of great wonder to see a virtuous man die in his bed and if the account were well made I think it might appear that every one of the Emperors before Titus shed more noble and innocent Blood than Rome and all the Commonwealths in the world have done whilst they had the free enjoyment of their own Liberty But if any man in favour of our Author seek to diminish this vast disproportion between the two differing sorts of Government and impute the disorders that happen'd in the time of the Gracchi and others whilst Rome was strugling for her Liberty to the Government of a Commonwealth he will find them no more to be compar'd with those that fell out afterwards than the railings of a turbulent Tribune against the Senate to the Villanies and Cruelties that corrupted and dispeopled the Provinces from Babylon to Scotland And whereas the State never fail'd to recover from any disorders as long as the Root of Liberty remain'd untouch'd and became more powerful and glorious than ever even after the Wars of Marius and Sylla when that was destroy'd the City fell into a languishing condition and grew weaker and weaker till that and the whole Empire was ruin'd by the Barbarians 3. Our Author to shew that his memory is as good as his judgment having represented Rome in the times of Liberty as a publick Slaughter-house soon after blames the clemency of their Laws whereas 't is impossible that the same City could at the same time be guilty of those contrary extremities and no less certain that it was perfectly free from them both His assertion seems to be grounded upon Cesar's Speech related by Salust in favour of Lentulus and Cethegus Companions of Catiline but tho he there endeavoured to put the best colour he could upon their cause it signified only thus much that a Roman Citizen could not be put to death without being heard in publick which Law will displease none that in understanding and integrity may not be compared to Filmer and his Followers 'T is a folly to extend it farther for 't is easily proved that there was always a power of putting Citizens to death and that it was exercised when occasion required The Laws were the same in the time of the Kings and when that Office was executed by Consuls excepting such changes as are already mention'd The Lex perduellionis cited by Livy in the case of Horatius who had kill'd his Sister continued in force from the foundation to the end of that Government the condemnation was to death the words of the Sentence these Caput obnubito infelici arbore reste suspendito verberato intra Pomaerium vel extra Pomaerium He was tried by this Law upon an appeal made to the People by his Father and absolved admiratione magis virtutis quam jure causae which could not have bin if by the Law no Citizen might be put to death The Sons of Brutus were condemn'd to death in publick and executed with the Aquilii and Vitellii their Companions in the same Conspiracy Manlius Capitolinus was put to death by the vote of the People Titus Manlius by the command of his Father Torquatus for fighting without order Two Legions were decimated by Appius Claudius Spurius Melius refusing to appear before the Dictator was killed by Servilius Ahala General of the Horse and pronounced jure caesum Quintus Fabius was by Papirius the Dictator condemn'd to die and could not have bin saved but by the intercession and authority of the People If this be not so I desire to be informed what the Senate meant by condemning Nero to be put to death more majorum if more majorum no Citizen might be put to death Why the Consuls Dictators Military Tribuns Decemviri caused Rods and Axes to be carried beforethem as well within as without the City if no use was to be made of them Were they only vain Badges of a Power never to be executed or upon whom was the Supreme Power signified by them to be exercised within and without the City if the Citizens were not subject to it 'T is strange that a man who had ever read a Book of matters relating to the Affairs of Rome should fancy these things or hope to impose them upon the World if he knew them to be foolish false and absurd But of all the marks of a most supine stupidity that can be given by a man I know no one equal to this of our Author who in the same Clause wherein he says no Citizen could be put to death or banished adds that the Magistrates were upon pain of death forbidden to do it for if a Magistrate might be put to death for banishing a Citizen or causing him to be executed a Citizen might be put to death for the Magistrates were not Strangers but Citizens
they who seemed to intend nothing less than the extirpation of all the Patrician Families grew quiet Menenius Agrippa appeased one of the most violent Seditions that ever happened amongst them till civil Interests were pursued by armed Troops with a Fable of the several parts of the Body that murmur'd against the Belly and the most dangerous of all was composed by creating Tribuns to protect them Some of the Patrician young men had favour'd the Decemviri and others being unwilling to appear against them the People believed they had all conspired with those new Tyrants but Valerius and Horatius putting themselves at the head of those who sought their destruction they perceived their Error and looked upon the Patricians as the best defenders of their Liberties Et inde says Livy auram Libertatis captare unde servitutem timuissent Democratical Governments are most liable to these mistakes In Aristocracies they are seldom seen and we hear of none in Sparta after the establishment of the Laws by Lycurgus but Absolute Monarchies seem to be totally exempted from them The mischiefs design'd are often dissembled or denied till they are past all possibililty of being cured by any other way than Force and such as are by necessity driven to use that remedy know they must perfect their work or perish He that draws his Sword against the Prince say the French ought to throw away the Scabbard for tho the design be never so just yet the Authors are sure to be ruin'd if it miscarry Peace is seldom made and never kept unless the Subject retain such a Power in his hands as may oblige the Prince to stand to what is agreed and in time some trick is found to deprive them of that benefit Seditions proceeding from malice are seldom or never seen in popular Governments for they are hurtful to the People and none have ever willingly and knowingly hurt themselves There may be and often is malice in those who excite them but the people is ever deceiv'd and whatsoever is thereupon done ought to be imputed to error as I said before If this be discovered in time it usually turns to the destruction of the Contriver as in the cases of Manlius Capitolinus Spurius Melius and Sp. Cassius if not for the most part it produces a Tyranny as in those of Agathocles Dionysius Pisistratus and Cesar But in Absolute Monarchies almost all the Troubles that arise proceed from malice they cannot be reformed the extinction of them is exceeding difficult if they have continued long enough to corrupt the people and those who appear against them seek only to set up themselves or their Friends Thus we see that in the Civil Wars of the East the question was whether Artaxerxes or Cyrus Phraartes or Bardanes should reign over the Persians and Parthians The people suffer'd equally from both whilst the Contests lasted and the decision left them under the power of a proud and cruel Master The like is seen in all places After the death of Brutus and Cassius no War was ever undertaken in the Roman Empire upon a better account than one man's private concernments The Provinces suffer'd under all and he whom they had assisted to overthrow one wicked Tyrant very often proved worse than his Predecessor And the only ground of all the Dissensions with which France was vexed under the Princes of Meroveus and Pepin's Races were which of them should reign the people remaining miserable under them all The case is not much different in mixed Monarchies Some Wars may be undertaken upon a just and publick account but the pretences are commonly false a lasting Reformation is hardly introduced an intire Change often disliked And tho such Kingdoms are frequently and terribly distracted as appears by the beforemention'd Examples of England Spain c. the Quarrels are for the most part begun upon personal Titles as between Henry the First and Robert Stephen and Maud or the Houses of Lancaster and York and the people who get nothing by the Victory which way soever it fall and might therefore prudently leave the Competitors to decide their own Quarrels like Theorestes and Polinices with their own Swords become cruelly engaged in them It may seem strange to some that I mention Seditions Tumults and Wars upon just occasions but I can find no reason to retract the term God intending that men should live justly with one another dos certainly intend that he or they who do no wrong should suffer none and the Law that forbids Injuries were of no use if no Penalty might be inflicted on those that will not obey it If Injustice therefore be evil and Injuries forbidden they are also to be punished and the Law instituted for their prevention must necessarily intend the avenging of such as cannot be prevented The work of the Magistracy is to execute this Law the Sword of Justice is put into their hands to restrain the fury of those within the Society who will not be a Law to themselves and the Sword of War to protect the people against the violence of Foreigners This is without exception and would be in vain if it were not But the Magistrate who is to protect the people from Injury may and is often known not to have done it he sometimes renders his Office useless by neglecting to do Justice sometimes mischievous by overthrowing it This strikes at the root of God's general Ordinance That there should be Laws and the particular Ordinances of all Societies that appoint such as seem best to them The Magistrate therefore is comprehended under both and subject to both as well as private men The ways of preventing or punishing Injuries are Judicial or Extrajudicial Judicial proceedings are of force against those who submit or may be brought to trial but are of no effect against those who resist and are of such power that they cannot be constrained It were absurd to cite a man to appear before a Tribunal who can aw the Judges or has Armies to defend him and impious to think that he who has added treachery to his other Crimes andu surped a Power above the Law should be protected by the enormity of his wickedness Legal proceedings therefore are to be used when the Delinquent submits to the Law and all are just when he will not be kept in order by the legal The word Sedition is generally applied to all numerous Assemblies without or against the Authority of the Magistrate or of those who assume that Power Athaliah and Jezabel were more ready to cry out Treason than David and examples of that sort are so frequent that I need not alledg them Tumult is from the disorderly manner of those Assemblies where things can seldom be done regularly and War is that Decertatio per vim or trial by force to which men come when other ways are ineffectual If the Laws of God and Men are therefore of no effect when the Magistracy is left at liberty to break them and if the Lusts
of those who are too strong for the Tribunals of Justice cannot be otherwise restrained than by Sedition Tumults and War those Seditions Tumults and Wars are justified by the Laws of God and Man I will not take upon me to enumerate all the cases in which this may be done but content my self with three which have most frequently given occasion for proceedings of this kind The first is When one or more men take upon them the Power and Name of a Magistracy to which they are not justly called The second When one or more being justly called continue in their Magistracy longer than the Laws by which they are called do prescribe And the third When he or they who are rightly called do assume a Power tho within the time prescribed that the Law dos not give or turn that which the Law dos give to an end different and contrary to that which is intended by it For the first Filmer forbids us to examine Titles he tells us we must submit to the Power whether acquired by Usurpation or otherwise not observing the mischievous Absurdity of rewarding the most detestable Villanies with the highest Honours and rendring the veneration due to the supreme Magistrate as Father of the People to one who has no other advantage above his Brethren than what he has gained by injuriously dispossessing or murdering him that was so Hobbs fearing the advantages that may be taken from such desperate nonsense or not thinking it necessary to his end to carry the matter so far has no regard at all to him who comes in without Title or Consent and denying him to be either King or Tyrant gives him no other name than Hostis Latro and allows all things to be lawful against him that may be done to a publick Enemy or Pyrat which is as much as to say any man may destroy him how he can Whatever he may be guilty of in other respects he dos in this follow the voice of Mankind and the dictates of common sense for no man can make himself a Magistrate for himself and no man can have the right of a Magistrate who is not a Magistrate If he be justly accounted an Enemy to all who injures all he above all must be the publick Enemy of a Nation who by usurping a power over them dos the greatest and most publick injury that a People can suffer For which reason by an established Law among the most virtuous Nations every man might kill a Tyrant and no Names are recorded in History with more honour than of those who did it These are by other Authors called Tyranni sine titulo and that name is given to all those who obtain the supreme Power by illegal and unjust means The Laws which they overthrow can give them no protection and every man is a Souldier against him who is a publick Enemy The same rule holds tho they are more in number as the Magi who usurped the Dominion of Persia after the death of Cambyses the thirty Tyrants at Athens overthrown by Thrasibulus those of Thebes slain by Pelopidas the Decemviri of Rome and others for tho the multitude of Offenders may sometimes procure impunity yet that act which is wicked in one must be so in ten or twenty and whatsoever is lawful against one Usurper is so against them all 2. If those who were rightly created continue beyond the time limited by the Law 't is the same thing That which is expir'd is as if it had never bin He that was created Consul for a year or Dictator for six months was after that a private man and if he had continued in the exercise of his Magistracy had bin subject to the same punishment as if he had usurped it at the first This was known to Epaminondas who finding that his Enterprize against Sparta could not be accomplished within the time for which he was made Boeotarches rather chose to trust his Countrymen with his life than to desist and was saved merely through an admiration of his Virtue assurance of his good Intentions and the glory of the Action The Roman Decemviri tho duly elected were proceeded against as private men usurping the Magistracy when they continued beyond their time Other Magistrates had ceased there was none that could regularly call the Senate or People to an Assembly but when their ambition was manifest and the people exasperated by the death of Virginia they laid aside all ceremonies The Senate and People met and exercising their Authority in the same manner as if they had bin regularly called by the Magistrate appointed to that end they abrogated the Power of the Decemviri proceeded against them as Enemies and Tyrants and by that means preserved themselves ' from utter ruin 3. The same course is justly used against a legal Magistrate who takes upon him tho within the time prescribed by the Law to exercise a Power which the Law dos not give for in that respect he is a private man Quia as Grotius says eatenus non habet imperium and may be restrain'd as well as any other because he is not set up to do what he lists but what the Law appoints for the good of the People and as he has no other Power than what the Law allows so the same Law limits and directs the exercise of that which he has This Right naturally belonging to Nations is no way impair'd by the name of Supreme given to their Magistrates for it signifies no more than that they do act soveraignly in the matters committed to their charge Thus are the Parliaments of France called Cours Souveraines for they judg of Life and Death determine Controversies concerning Estates and there is no appeal from their Decrees but no man ever thought that it was therefore lawful for them to do what they pleased or that they might not be opposed if they should attempt to do that which they ought not And tho the Roman Dictators and Consuls were supreme Magistrates they were subject to the People and might be punished as well as others if they transgressed the Law Thuanus carries the word so far that when Barlotta Giustiniano and others who were but Colonels were sent as Commanders in chief of three or four thousand men upon an Enterprize he always says Summum Imperium ei delatum Grotius explains this point by distinguishing those who have the summum Imperium summo modo from those who have it modo non summo I know not where to find an Example of this Soveraign Power enjoy'd without restriction under a better title than Occupation which relates not to our purpose who seek only that which is legal and just Therefore laying aside that point for the present we may follow Grotius in examining the Right of those who are certainly limited Ubi partem Imperii habet Rex partem Senatus sive Populus in which case he says Regi in partem non suam involanti vis just a opponi potest in as
much as they who have a part cannot but have a right of defending that part Quia data facultate datur jus faculiatem tuendi without which it could be of no effect The particular limits of the Rights belonging to each can only be judged by the precise Letter or general Intention of the Law The Dukes of Venice have certainly a part in the Government and could not be called Magistrates if they had not They are said to be supreme all Laws and publick Acts bear their Names The Ambassador of that State speaking to Pope Paul the 5th denied that he acknowledged any other Superior than God But they are so well known to be under the Power of the Law that divers of them have bin put to death for transgressing it and a marble Gallows is seen at the foot of the stairs in St. Mark 's Palace upon which some of them and no others have bin executed But if they may be duly opposed when they commit undue Acts no man of judgment will deny that if one of them by an outragious Violence should endeavour to overthrow the Law he might by violence be suppressed and chastised Again some Magistrates are entrusted with a power of providing Ships Arms Ammunition and Victuals for War raising and disciplining Soldiers appointing Officers to command in Forts and Garisons and making Leagues with Foreign Princes and States But if one of these should imbezel sell or give to an Enemy those Ships Arms Ammunition or Provisions betray the Forts employ only or principally such men as will serve him in those wicked Actions and contrary to the trust reposed in him make such Leagues with Foreigners as tend to the advancement of his personal Interests and to the detriment of the Publick he abrogates his own Magistracy and the Right he had perishes as the Lawyers say frustratione finis He cannot be protected by the Law which he has overthrown nor obtain impunity for his Crimes from the Authority that was conferred upon him only that he might do good with it He was singulis major on account of the excellence of his Office but universis minor from the nature and end of his institution The surest way of extinguishing his Prerogative was by turning it to the hurt of those who gave it When matters are brought to this posture the Author of the mischief or the Nation must perish A Flock cannot subsist under a Shepherd that seeks its ruin nor a People under an unfaithful Magistrate Honour and Riches are justly heaped upon the heads of those who rightly perform their duty because the difficulty as well as the excellency of the work is great It requires Courage Experience Industry Fidelity and Wisdom The good Shepherd says our Saviour says down his life for his Sheep The Hireling who flies in time of danger is represented under an ill character but he that sets himself to destroy his Flock is a Wolf His Authority is incompatible with their subsistence and whoever disapproves Tumults Seditions or War by which he may be removed from it if gentler means are ineffectual subverts the Foundation of all Law exalts the fury of one man to the destruction of a Nation and giving an irresistible Power to the most abominable Iniquity exposes all that are good to be destroy'd and Virtue to be utterly extinguished Few will allow such a Preeminence to the Dukes of Venice or Genoa the Advoyers of Switzerland or the Burgomasters of Amsterdam Many will say these are Rascals if they prove false and ought rather to be hang'd than suffer'd to accomplish the Villanies they design But if this be confess'd in relation to the highest Magistrates that are among those Nations why should not the same be in all others by what name soever they are called When did God confer upon those Nations the extraordinary privilege of providing better for their own safety than others Or was the Gift universal tho the Benefit accrue only to those who have banished great Titles from among them If this be so 't is not their Felicity but their Wisdom that we ought to admire and imitate But why should any think their Ancestors had not the same care Have not they who retain'd in themselves a Power over a Magistrate of one name the like over another Is there a charm in words or any name of such efficacy that he who receives it should immediately become Master of those that created him whereas all others do remain for ever subject to them Would the Venetian Government change its nature if they should give the name of King to their Prince Are the Polanders less free since the title of King is conferr'd upon their Dukes or are the Moscovites less Slaves because their chief Magistrate has no other than that of Duke If we examine things but a little 't will appear that Magistrates have enjoy'd large Powers who never had the name of Kings and none were ever more restrained by Laws than those of Sparta Arragon the Goths in Spain Hungary Bohemia Sweden Denmark Poland and others who had that Title There is therefore no such thing as a Right universally belonging to a Name but every one enjoys that which the Laws by which he is confer upon him The Law that gives the Power regulates it and they who give no more than what they please cannot be obliged to suffer him to whom they give it to take more than they thought fit to give or to go unpunished if he do The Agreements made are always confirmed by Oath and the treachery of violating them is consequently aggravated by Perjury They are good Philosophers and able Divines who think this can create a Right to those who had none or that the Laws can be a protection to such as overthrow them and give opportunity of doing the mischiefs they design If it do not then he that was a Magistrate by such actions returns into the condition of a private man and whatever is lawful against a Thief who submits to no Law is lawful against him Men who delight in cavils may ask Who shall be the Judg of these occasions and whether I intend to give to the People the decision of their own Cause To which I answer that when the Contest is between the Magistrate and the People the party to which the determination is referred must be the Judg of his own case and the question is only Whether the Magistrate should depend upon the Judgment of the People or the People on that of the Magistrate and which is most to be suspected of injustice That is whether the people of Rome should judg Tarquin or Tarquin judg the people He that knew all good men abhorred him for the murder of his Wife Brother father-in-Father-in-law and the best of the Senate would certainly strike off the heads of the most eminent remaining Poppies and having incurr'd the general hatred of the people by the wickedness of his Government he seared revenge and endeavouring to
and People came to be Master of so much of the Country as procured him the name of King of France killed his eldest Son on suspicion that he was excited against him by Brunehaud and his Second lest he should revenge the death of his Brother he married Fredegonde and was soon after kill'd by her Adulterer Landry The Kingdom continued in the same misery through the rage of the surviving Princes and found no relief tho most of them fell by the Sword and that Brunehaud who had bin a principal cause of those Tragedies was tied to the tails of four wild Horses and suffer'd a death as foul as her life These were Lions and Leopards They involved the Kingdom in desperate troubles but being men of valour and industry they kept up in some measure the Reputation and Power of the Nation and he who attain'd to the Crown defended it But they being fallen by the hands of each other the poisonous Root put forth another Plague more mortal than their Fury The vigour was spent and the Succession becoming more settled ten base and slothful Kings by the French called Les Roys faineans succeeded Some may say They who do nothing do no hurt but the rule is false in relation to Kings He that takes upon him the government of a People can do no greater evil than by doing nothing nor be guilty of a more unpardonable Crime than by Negligence Cowardice Voluptuousness and Sloth to desert his charge Virtue and Manhood perish under him good Discipline is forgotten Justice slighted the Laws perverted or rendred useless the People corrupted the publick Treasures exhausted and the Power of the Government always falling into the hands of Flatterers Whores Favorites Bawds and such base wretches as render it contemptible a way is laid open for all manner of disorders The greatest cruelty that has bin known in the world if accompanied with wit and courage never did so much hurt as this slothful bestiality or rather these slothful Beasts have ever bin most cruel The Reigns of Septimius Severus Mahomet the second or Selim the second were cruel and bloody but their fury was turned against Foreigners and some of their near Relations or against such as fell under the suspicion of making attempts against them The condition of the people was tolerable those who would be quiet might be safe the Laws kept their right course the Reputation of the Empire was maintained the Limits defended and the publick Peace preserved But when the Sword passed into the hands of lewd slothful foolish and cowardly Princes it was of no power against foreign Enemies or the disturbers of domestic Peace tho always sharp against the best of their own Subjects No man knew how to secure himself against them unless by raising civil Wars which will always be frequent when a Crown defended by a weak hand is proposed as a Prize to any that dare invade it This is a perpetual Spring of disorders and no Nation was ever quiet when the most eminent men found less danger in the most violent Attempts than in submitting patiently to the Will of a Prince that suffers his Power to be managed by vile Persons who get credit by flattering him in his Vices But this is not all such Princes naturally hate and fear those who excel them in Virtue and Reputation as much as they are inferior to them in Fortune and think their Persons cannot be secured nor their Authority enlarged except by their destruction 'T is ordinary for them inter scorta ganeas principibus viris perniciem machinare and to make Cruelty a cover to Ignorance and Cowardice Besides the Mischiefs brought upon the Publick by the loss of eminent Men who are the Pillars of every State such Reigns are always accompanied with Tumults and Civil Wars the great Men striving with no less violence who shall get the weak Prince into his power when such regard is had to succession that they think it not fit to devest him of the Title than when with less respect they contend for the Soveraignty it self And whilst this sort of Princes reigned France was not less afflicted with the Contests between Grimbauld Ebroin Grimoald and others for the Mayoralty of the Palace than they had bin before by the rage of those Princes who had contested for the Crown The Issue also was the same After many Revolutions Charles Martel gained the Power of the Kingdom which he had so bravely defended against the Saracens and having transmitted it to his Son Pepin the General Assembly of Estates with the approbation of Mankind conferred the Title also upon him This gave the Nation ease for the present but the deep-rooted Evil could not be so cured and the Kingdom that by the Wisdom Valour and Reputation of Pepin had bin preserved from civil Troubles during his life fell as deeply as ever into them so soon as he was dead His Sons Carloman and Charles divided the Dominions but in a little time each of them would have all Carloman fill'd the Kingdom with Tumult raised the Lombards and marched with a great Army against his Brother till his course was interrupted by death caused as is supposed by such helps as Princes liberally afford to their aspiring Relations Charles deprived his two Sons of their Inheritance put them in Prison and we hear no more of them His third Brother Griffon was not more quiet nor more successful and there could be no Peace in Gascony Italy or Germany till he was kill'd But all the Advantages which Charles by an extraordinary Virtue and Fortune had purchased for his Country ended with his life He left his Son Lewis the Gentle in possession of the Empire and Kingdom of France and his Grandson Bernard King of Italy But these two could not agree and Bernard falling into the hands of Lewis was deprived of his Eyes and some time after kill'd This was not enough to preserve the Peace Lothair Lewis and Pepin all three Sons to Lewis rebelled against him called a Council at Lions deposed him and divided the Empire amongst themselves After five years he escaped from the Monastery where he had bin kept renew'd the War and was again taken Prisoner by Lothair When he was dead the War broke out more fiercely than ever between his Children Lothair the Emperor assaulted Lewis King of Bavaria and Charles King of Rhetia was defeated by them and confined to a Monastery where he died New Quarrels arose between the two Brothers upon the division of the Countries taken from him and Lorrain only was left to his Son Lewis died soon after and Charles getting possession of the Empire and Kingdom ended an inglorious Reign in an unprosperous attempt to deprive Hermingrade Daughter to his Brother Lewis of the Kingdom of Arles and other places left to her by her Father Lewis his Son call'd the Stutterer reigned two years in much trouble and his only legitimate Son Charles the Simple came not to the
be a guide to Kings equally provide for the good of King and People Whereas they who admit of no participants in power and acknowledg no rule but their own Will set up an interest in themselves against that of their People lose their affections which is their most important Treasure and incur their hatred from whence results their greatest danger SECT XXXI The Liberties of Nations are from God and Nature not from Kings WHatsoever is usually said in opposition to this seems to proceed from a groundless conceit that the Liberties enjoy'd by Nations arise from the Concessions of Princes This point has bin already treated but being the foundation of the Doctrine I oppose it may not be amiss farther to examin how it can be possible for one man born under the same condition with the rest of Mankind to have a Right in himself that is not common to all others till it be by them or a certain number of them conferred upon him or how he can without the utmost absurdity be said to grant Liberties and Privileges to them who made him to be what he is If I had to do with a man that sought after Truth I should think he had bin led into this extravagant opinion by the terms ordinarily used in Patents and Charters granted to particular men and not distinguishing between the Proprietor and the Dispenser might think Kings had given as their own that which they only distribute out of the publick Treasury and could have had nothing to distribute by parcels if it had not bin given to them in gross by the Publick But I need not use our Author so gently The perversity of his judgment and obstinate hatred to Truth is sufficient to draw him into the most absurd errors without any other inducement and it were not charity but folly to think he could have attributed in general to all Princes without any regard to the ways by which they attain to their Power such an authority as never justly belonged to any This will be evident to all those who consider that no man can confer upon others that which he has not in himself If he be originally no more than they he cannot grant to them or any of them more than they to him In the 7th 8th 9th and subsequent Sections of the first Chapter it has bin proved that there is no resemblance between the paternal Right and the absolute Power which he asserts in Kings that the right of a Father whatever it be is only over his Children that this right is equally inherited by them all when he dies that every one cannot inherit Dominion for the right of one would be inconsistent with that of all others that the right which is common to all is that which we call Liberty or exemption from Dominion that the first Fathers of Mankind after the Flood had not the exercise of Regal Power and whatsoever they had was equally devolved to every one of their Sons as appears by the examples of Noah Shem Abraham Isaac Jacob and their Children that the erection of Nimrod's Kingdom was directly contrary to and inconsistent with the paternal right if there was any regality in it that the other Kingdoms of that time were of the same nature that Nimrod not exceeding the age of threescore years when he built Babel could not be the Father of those that assisted him in that attempt that if the seventy two Kings who as our Author says went from Babylon upon the confusion of Languages were not the Sons of Nimrod he could not govern them by the right of a Father if they were they must have bin very young and could not have Children of their own to people the Kingdoms they set up that whose Children soever they were who out of a part of Mankind did within a hundred and thirty two years after the Flood divide into so many Kingdoms they shewed that others in process of time might subdivide into as many as they pleased and Kingdoms multiplying in the space of four thousand years since the 72 in the same proportion they did in one hundred and thirty two years into seventy two there would now be as many Kings in the World as there are men that is no man could be subject to another that this equality of Right and exemption from the domination of any other is called Liberty that he who enjoys it cannot be deprived of it unless by his own consent or by force that no one man can force a Multitude or if he did it could confer no right upon him that a multitude consenting to be governed by one man doth confer upon him the power of governing them the powers therefore that he has are from them and they who have all in themselves can receive nothing from him who has no more than every one of them till they do invest him with it This is proved by sacred and prophane Histories The Hebrews in the creation of Judges Kings or other Magistrates had no regard to Paternity or to any who by extraction could in the least pretend to the right of Fathers God did never direct them to do it nor reprove them for neglecting it If they would chuse a King he commanded them to take one of their Brethren not one who called himself their Father When they did resolve to have one he commanded them to chuse him by lot and caused the Lot to fall upon a young man of the youngest Tribe David and the other Kings of Israel or Judah had no more to say for themselves in that point than Saul All the Kings of that Nation before and after the Captivity ordinarily or extraordinarily set up justly or unjustly were raised without any regard to any prerogative they could claim or arrogate to themselves on that account All that they had therefore was from their elevation and their elevation from those that elevated them 'T was impossible for them to confer any thing upon those from whom they received all they had or for the People to give power to Kings if they had not had it in themselves which Power universally residing in every one is that which we call Liberty The method of other Nations was much like to this They placed those in the Throne who seemed best to deserve so great an honour and most able to bear so great a burden The Kingdoms of the Heroes were nothing else but the Government of those who were most beneficent to the Nations amongst whom they lived and whose Virtues were thought fit to be raised above the ordinary level of the World Tho perhaps there was not any one Athenian or Roman equal to Theseus or Romulus in courage and strength yet they were not able to subdue many or if any man should be so vain to think that each of them did at first subdue one man then two and so proceeding by degrees conquered a whole People he cannot without madness ascribe the same to Numa who being sent for
from a foreign Country was immediately made King of a fierce People that had already conquer'd many of their Neighbours and was grown too boisterous even for Romulus himself The like may be said of the first Tarquin and of Servius they were Strangers and tho Tullus Hostilius and Ancus Martius were Romans they had as little title to a Dominion over their Fellow-Citizens or means of attaining to it as if they had come from the farthest parts of the Earth This must be in all places unless one man could prove by a perfect and uninterrupted Genealogy that he is the eldest Son of the eldest Line of Noah and that Line to have continued perpetually in the Government of the World for if the Power has bin divided it may be subdivided into infinity if interrupted the chain is broken and can never be made whole But if our Author can perform this for the service of any man I willingly surrender my Arms and yield up the Cause I defend If he fail 't is ridiculous to pretend a Right that belongs to no man or to go about to retrieve a Right which for the space of four thousand years has lain dorment and much more to create that which never had a subsistence This leads us necessarily to a conclusion That all Kingdoms are at the first erected by the consent of Nations and given to whom they please or else all are set up by force or some by force and some by consent If any are set up by the consent of Nations those Kings do not confer Liberties upon those Nations but receive all from them and the general Proposition is false If our Author therefore or his Followers would confute me they must prove that all the Kingdoms of the World have their beginning from force and that Force doth always create a Right or if they recede from the general Proposition and attribute a peculiar right to one or more Princes vvho are so absolute Lords of their People that those under them have neither Liberty Privilege Property or Part in the Government but by their Concessions they must prove that those Princes did by force gain the Power they have and that their Right is derived from it This force also must have bin perpetually continued for if that force be the root of the Right that is pretended another force by the same rule may overturn extinguish or transfer it to another hand If Contracts have interven'd the force ceases and the Right that afterwards doth accrue to the persons must proceed from and be regulated according to those Contracts This may be sufficient to my purpose For as it has bin already proved that the Kingdoms of Israel Judah Rome Sparta France Spain England and all that we are concerned in or that deserve to be examples to us did arise from the Consent of the respective Nations and were frequently reduced to their first Principles when the Princes have endeavour'd to transgress the Laws of their Institution it could be nothing to us tho Attila or Tamerlan had by force gained the Dominions they possess'd But I dare go a step further and boldly assert that there never was or can be a man in the world that did or can subdue a Nation and that the right of one grounded upon force is a meer whimsey It was not Agathocles Dionysius Nabis Marius Sylla or Cesar but the mercenary Soldiers and other Villains that joined with them who subdued the Syracusans Spartans or Romans And as the work was not performed by those Tyrants alone if a right had bin gained by the violence they used it must have bin common to all those that gained it and he that commanded them could have had no more than they thought fit to confer upon him When Miltiades desired leave to wear an Olive Garland in commemoration of the Victory obtained at Marathon and Athenian did in my opinion rightly say If you alone did fight against the Persians it is just that you only should be crowned but if others did participate in the Victory they ought also to have a part in the Honour And the principal difference that I have observ'd between the most regular proceedings of the wisest Senats or Assemblies of the people in their Persons or Delegates and the fury of the most dissolute Villains has bin that the first seeking the publick good do usually set up such a Man and invest him with such Powers as seem most conducing to that Good whereas the others following the impulse of a bestial rage and aiming at nothing but the satisfaction of their own lusts always advance one from whom they expect the greatest advantages to themselves and give him such Powers as most conduce to the accomplishment of their own ends but as to the Person 't is the same thing Cesar and Nero did no more make themselves what they were than Numa and could no more confer any Right Liberty or Privilege upon the Army that gave them all they had than the most regular Magistrate can upon the Senat or People that chose them This also is common to the worst as well as the best that they who set up either do as into a publick Treasury confer upon the Person they chuse a Power of distributing to particular men or numbers of men such Honors Privileges and Advantages as they may seem according to the Principles of the Government to deserve But there is this difference that the ends of the one being good and those of the other evil the first do for the most part limit the Powers that something may remain to reward Services done to the Publick in a manner proportion'd to the merit of every one placing other Magistrates to see it really performed so as they may not by the weakness or vices of the Governor be turned to the publick detriment the others think they never give enough that the Prince having all in his power may be able to gratify their most exorbitant desires if by any ways they can get his favour and his infirmities and vices being most beneficial to them they seldom allow to any other Magistrate a power of opposing his Will or suffer those who for the publick good would assume it The World affords many examples of both sorts and every one of them have had their progress sutable to their Constitution The regular Kingdoms of England France Spain Poland Bohemia Denmark Sweden and others whether elective or hereditary have had High Stewards Constables Mayors of the Palace Rixhofmeisters Parliaments Diets Assemblies of Estates Cortez and the like by which those have bin admitted to succeed who seemed most fit for the publick Service the unworthy have bin rejected the infirmities of the weak supplied the malice of the unjust restrained and when necessity required the Crown transferr'd from one Line or Family to another But in the furious Tyrannies that have bin set up by the violence of a corrupted Soldiery as in the antient Roman Empire the
Kingdoms of the Moors and Arabians the Tyrannies of Ezzelino of Padoa those of the Visconti and Sforzeschi of Milan Castruccio Castracani of Lucca Cesar Borgia and others there was nothing of all this The Will of the Prince was a Law all Power was in him and he kept it till another stept up and took it from him by the same means that he had gain'd it This fell out so frequently that tho all the Roman Emperors endeavour'd to make their Power hereditary it hardly continued three Generations in one Line from Augustus to Augustulus unless in that of Constantine and that with extreme confusion and disorder They who had madly set up a man to be their Head and exposed so much of the world as was under their power to be destroy'd by him did by the like fury throw him down and never ceased till they had brought the Empire to utter ruin But if this paternal Soveraignty be a meer fiction that never had any effect that no Nation was ever commanded by God to make it their rule nor any reproved for the neglect of it none ever learnt it from the light of nature nor were by wise men taught to regard it The first Fathers claimed no privilege from it when every man's Genealogy was known and if there were such a thing in nature it could be of no use at this day when the several Races of men are so confused that not one in the world can prove his own Original and that the first Kingdoms whether well or ill constituted according to the Command of God or the Inventions of Men were contrary to and incompatible with it There can have bin no justice in any if such a Rule was to have bin observed the continuance of an unjust usurpation can never have created a Right but aggravated the injustice of overthrowing it No man could ever by his own strength and courage subdue a multitude nor gain any other right over them if he did than they might have to tear it from him Whoever denies Kingdoms or other Magistracies to have bin set up by men according to their own will and from an opinion of receiving benefit by them accuses all the Governments that are or ever have bin in the world of that outragious injustice in their Foundation which can never be repair'd If there be therefore or ever was any just Government amongst men it was constituted by them and whether their Proceedings were regular or violent just or unjust the Powers annexed to it were their Donation The Magistracies erected by them whether in one or more men temporary or perpetual elective or hereditary were their Creatures and receiving all from them could conser nothing upon them SECT XXXII The Contracts made between Magistrates and the Nations that created them were real solemn and obligatory OUR Author having with big words and little sense inveigh'd against Popular and Mix'd Governments proceeds as if he had proved they could not or ought not to be If it be says he unnatural for the multitude to chuse their Governors or to govern or to partake in the Government what can be thought of that damnable Conclusion which is made by too many that the multitude may correct or depose their Princes if need be Surely the unnaturalness and injustice of this Position cannot sufficiently be expressed For admit that a King make a Contract or Paction with his People originally in his Ancestors or personally at his Coronation for both these Pactions some dream of but cannot offer any proof of either yet by no Law of any Nation can a Contract be thought broken except first a lawful trial be had by the ordinary Judg of the breakers thereof or else every man may be both Party and Judg in his own case which is absurd once to be thought for then it will lie in the hands of the headless multitude when they please to cast off the Yoak of Government that God hath laid upon them and to judg and punish him by whom they should be judged and punished themselves To this I first answer briefly That if it be natural for the multitude to chuse their Governors or to govern or to participate of the Government as best pleases themselves or that there never was a Government in the World that was not so set up by them in pursuance of the power naturally inherent in themselves what can be thought of that damnable Conclusion which has bin made by Fools or Knaves That the multitude may not if need be correct or depose their own Magistrates Surely the unnaturalness and injustice of such a Position cannot be sufficiently expressed If that were admitted all the most solemn Pacts and Contracts made between Nations and their Magistrates originally or personally and confirmed by Laws and mutual Oaths would be of no value He that would break the most sacred Bonds that can be amongst men should by perjury and wickedness become Judg of his own case and by the worst of crimes procure impunity for all It would be in his power by folly wickedness and madness to destroy the multitude which he was created and sworn to preserve tho wise virtuous and just and headed by the wisest and justest of men or to lay a Yoak upon those who by the Laws of God and Nature ought to be free He might in his own case judg that Body by which he ought to be judged and who in confideration of themselves and their own good made him to be whatsoever he is more than every one of them The Governments instituted for the preservation of Nations would turn to their destruction It would be impossible to check the fury of a corrupt and perfidious Magistrate The worst of men would be raised to a height that was never deserved by the best and the assurance of indemnity would by increasing their insolence turn their other vices into madness as has bin too often seen in those who have had more power than they deserved and were more hardly brought to account for their actions than ought to have bin tho I never heard of any who had so much as our Author asserts to be in all nor that any was absolutely assured he should not be question'd for the abuse of what he had Besides if every People may govern or constitute and chuse one or more Governors they may divide the Powers between several men or ranks of men allotting to every one so much as they please or retaining so much as they think fit This has bin practised in all the Governments which under several forms have flourished in Palestine Greece Italy Germany France England and the rest of the World The Laws of every place show what the Power of the respective Magistrate is and by declaring how much is allowed to him declare vvhat is denied for he has not that vvhich he has not and is to be accounted a Magistrate vvhilst he exercises that vvhich he has If any doubts do hereupon arise I
by the most outragious injuries done to the People sometimes by a foreign aid as Kings were by the power of the Romans imposed upon the Britans that they might wast the Forces and break the Spirits of that sierce people This Tacitus acknowledges and says That amongst other instruments of inslaving Nations they imposed Kings upon them The Medices were made Masters of Florence by the force of Charles the Fifth's Army Sometimes by a corrupt party in their own Country they have destroy'd the best men and subdued the rest as Agathocles Dionysius and Cesar did at Rome and Syracuse Others taking upon them to defend a People have turned the Arms with which they were entrusted against their own Masters as Francesco Sforza who being chosen by those of Milan to be their General against the Venetians made peace with them and by their assistance made himself Prince or in our Author's phrase Father of that great City If these be acts of tenderness love justice and charity those who commit them may well think they have gained the afsections of their People and grow to love those from whom they fear nothing and by whom they think they are loved But if on the other hand they know they have attained to their greatness by the worst of all Villanies and that they are on that account become the object of the publick hatred they can do no less than hate and sear those by whom they know themselves to be hated The Italians ordinarily say that he who dos an injury never pardons because he thinks he is never pardoned But he that enslaves and oppresses a People dos an injury which can never be pardoned and therefore fears it will be revenged Other Princes who come to their Thrones by better ways and are not contented with the power that the Law allows draw the same hatred upon themselves when they endeavour by force or fraud to enlarge it and must necessarily fear and hate their own People as much as he who by the ways besoremention'd has betray'd or subdued them Our Author makes nothing of this but taking it for granted that it was all one whether Samuel spoke of a King or a Tyrant declares that the same patient obedience is due to both but not being pleased to give any reason why we should believe him I intend to offer some why we should not First there is nothing in the nature or institution of Monarchy that obliges Nations to bear the exorbitances of it when it degenerates into Tyranny In the second place we have no precept for it Thirdly we have many approved examples and occasional particular commands to the contrary 1. To the first The point of Paternity being explain'd the duty of Children to Parents proved to proceed from the benefits received from them and that the power over them which at the first seems to have bin left at large because it was thought they would never abuse it has long since bin much restrain'd in all civilized Nations and particularly in our own We may conclude that men are all made of the same paste and that one ows no more to another than another to him unless for some benefit received or by virtue of some promise made The duty arising from a benefit received must be proportionable to it that which grows from a promise is determined by the promise or contract made according to the true sense and meaning of it He therefore that would know what the Babylonians Hebrews Athenians or Romans did owe to Nimrod Saul Theseus or Romulus must inquire what benefits were received from them or what was promised to them It cannot be said that any thing was due to them for the sake of their Parents they could have no prerogative by birth Nimrod was the sixth Son of Chush the Son of Cham who was the youngest Son of Noah his Kingdom was erected whilst Noah and his elder Sons Shem and Faphet as well as Cham Chush and his elder Sons were still living Saul was the Son of Chish a man of Benjamin who was the youngest Son of Jacob and he was chosen in the most Democratical way by Lot amongst the whole People Theseus according to the custom of the times pretended to be the Son of Neptune and Rhea was so well pleased with the Soldier that had gotten her with child that she resolved to think or say that Mars was the Father of the Children that is to say they were Bastards and therefore whatever was due to them was upon their own personal account without any regard to their Progenitors This must be measured according to what they did for those Nations before they were Kings or by the manner of their advancement Nothing can be pretended before they were Kings Nimrod rose up after the confusion of Languages and the People that understood the tongue he spoke follow'd him Saul was a young man unknown in Israel Theseus and Romulus had nothing to recommend them before other Athenians and Romans except the reputation of their Valour and the honours conferred upon them for that reason must proceed from expectation or hope and not from gratitude or obligation It must therefore proceed from the manner by which they came to be Kings He that neither is nor has any title to be a King can come to be so only by force or by consent If by force he dos not confer a benefit upon the People but injures them in the most outragious manner If it be possible therefore or reasonable to imagine that one man did ever subdue a multitude he can no otherwise resemble a Father than the worst of all Enemies who dos the greatest mischiefs resembles the best of all Friends who confers the most inestimable benefits and consequently dos as justly deserve the utmost effects of hatred as the other dos of love respect and service If by consent he who is raised from amongst the people and placed above his Brethren receives great honours and advantages but confers none The obligations of gratitude are on his side and whatsoever he dos in acknowledgment to his benefactors for their love to him is no more than his duty and he can demand no more from them than what they think fit to add to the favours already received If more be pretended it must be by virtue of that contract and can no otherwise be proved than by producing it to be examined that the true sense meaning and intention of it may be known This Contract must be in form and substance according to a general Rule given to all mankind or such as is left to the will of every Nation If a general one be pretended it ought to be shown that by enquiring into the contents we may understand the force and extent of it If this cannot be done it may justly pass for a fiction no conclusion can be drawn from it and we may be sure that what Contracts soever have bin made between Nations and their Kings have
Will and can he be offended with those who desire to live in a conformity to that Law Or could it justly be said The People had chosen that which is not good if nothing in Government be good but what they chose But as the worst men delight in the worst things and Fools are pleased with the most extreme absurdities he not only gives the highest praises to that which bears so many marks of God's hatred but after having said that Abraham Isaac Jacob and Moses were Kings he goes on and says The Israelites begged a King of Samuel which had bin impertinent if the Magistrates instituted by the Law were Kings and tho it might be a folly in them to ask what they had already it could be no sin to desire that which they enjoyed by the Ordinance of God If they were not Kings it follows that the only Government set up by God amongst men wanted the principal part even the Head and Foundation from whence all the other parts have their action and being that is God's Law is against God's Law and destroys it self But if God did neither by a general and perpetual Ordinance establish over all Nations the Monarchy which Samuel describes nor prescribe it to his own People by a particular Command it was purely the Peoples Creature the production of their own fancy conceived in wickedness and brought forth in iniquity an Idol set up by themselves to their own destruction in imitation of their accursed Neighbours and their Reward was no better than the concession of an impious Petition which is one of God's heaviest Judgments Samuel's words are acknowledged by all Interpreters who were not malicious or mad to be a disswasion from their wicked purpose not a description of what a King might justly do by virtue of his Office but what those who should be set up against God and his Law would do when they should have the power in their hands And I leave such as have the understandings of men and are not abandoned by God to judg what influence this ought to have upon other Nations either as to obligation or imitation SECT IV. No People can be obliged to suffer from their Kings what they have not a right to do OUR Author's next work is to tell us That the scope of Samuel was to teach the People a dutiful obedience to their King even in the things that they think mischievous or inconvenient For by telling them what the King would do he indeed instructs them what a Subject must suffer Yet not so that it is right for Kings to do injury but it is right for them to go unpunished by the People if they do it so that in this point it is all one whether Samuel describe a King or a Tyrant This is hard but the Conclusion is grounded upon nothing There is no relation between a Prediction that a thing shall be attempted or done to me and a Precept that I shall not defend my self or punish the person that attempts or dos it If a Prophet should say that a Thief lay in the way to kill me it might reasonably perswade me not to go or to go in such a manner as to be able to defend my self but can no way oblige me to submit to the violence that shall be offer'd or my Friends and Children not to avenge my death if I fall much less can other men be deprived of the natural right of defending themselves by my imprudence or obstinacy in not taking the warning given whereby I might have preserved my life For every man has a right of resisting some way or other that which ought not to be done to him and tho human Laws do not in all cases make men Judges and Avengers of the Injuries offer'd to them I think there is none that dos not justify the man who kills another that offers violence to him if it appear that the way prescribed by the Law for the preservation of the Innocent cannot be taken This is not only true in the case of outragious attempts to assassinate or rob upon the high way but in divers others of less moment I knew a man who being appointed to keep his Master's Park killed three men in one night that came to destroy his Deer and putting himself into the hands of the Magistrate and consessing the Fact both in matter and manner he was at the publick Assizes not only acquitted but commended for having done his duty and this in a time when 't is well known Justice was severely administred and little favour expected by him or his Master Nay all Laws must fall human Societies that subsist by them be dissolved and all innocent persons be exposed to the violence of the most wicked if men might not justly defend themselves against injustice by their own natural right when the ways prescribed by publick Authority cannot be taken Our Author may perhaps say this is true in all except the King And I desire to know why if it be true in all except the King it should not be true in relation to him Is it possible that he who is instituted for the obtaining of Justice should claim the liberty of doing Injustice as a Privilege Were it not better for a people to be without Law than that a Power should be established by Law to commit all manner of violences with impunity Did not David resist those of Saul Did he not make himself head of the Tribe of Judah when they revolted against his Son and afterwards of the ten Tribes that rejected his Posterity Did not the Israelites stone Adoram who collected the Taxes revolt from the house of David set up Jeroboam and did not the Prophet say it was from the Lord If it was from the Lord was it not good If it was good then is it not so for ever Did good proceed from one root then and from another now If God had avenged the Blood of Naboth by fire from Heaven and destroyed the House of Ahab as he did the two Captains and their men who were sent to apprehend Elijah it might be said he reserv'd that vengeance to himself but he did it by the Sword of Jehu and the Army which was the People who had set him up for an Example to others But 't is good to examine what this dutiful Obedience is that our Author mentions Men usually owe no more than they receive 'T is hard to know what the Israelites owed to Saul David Jeroboam Ahab or any other King whether good or bad till they were made Kings And the Act of the People by which so great a dignity was conferr'd seems to have laid a duty upon them who did receive more than they had to give so that something must be due from them unless it were releas'd by virtue of a Covenant or Promise made and none could accrue to them from the people afterwards unless from the merit of the person in rightly executing his Office If a Covenant
King is so also if he be and ought to enjoy the Rights belonging to the Father of the People And 't is not less ridiculous to say those who will have a King than it would be to say he that will have a Father for every one must have one whether he will or not But if the King be a Father as our Author from thence infers that all Laws are from him none can be imposed upon him and whatsoever the Subject enjoys is by his concessions 'T is absurd to speak of an Obligation lying upon the people to allow him Royal maintenance by providing Revenues since he has all in himself and they have nothing that is not from him and depending upon his Will For this reason a worthy Gentleman of the House of Commons in the year 1640. desired that the business of the Judges who in the Star-Chamber had given for their Opinion concerning Shipmony That in cases of Necessity the King might provide it by his own Authority and that he was Judg of that Necessity might be first examined that they might know whether they had any thing to give before they should speak of giving And as'tis certain that if the Sentence of those perjur'd Wretches had stood the Subjects of England by consequence would have bin found to have nothing to give 't is no less sure that if our Author's principle concerning the Paternal and Absolute Power of Kings be true it will by a more compendious way appear that it is not left to the choice of any Nation whether they will have a King or not for they must have him and can have nothing to allow him but must receive all from him But if those only who will have a King are bound to have one and to allow this Royal maintenance such as will not have a King are by one and the same act delivered from the necessity of having one and from providing Maintenance for him which utterly overthrows the magnificent Fabrick of Paternal Monarchy and the Kings who were lately represented by our Author placed on the Throne by God and Nature and endow'd with an absolute Power over all appear to be purely the Creatures of the People and to have nothing but what is received from them From hence it may be rationally inferred that he who makes a thing to be makes it to be only what he pleases This must hold in relation to Kings as well as other Magistrates and as they who made Consuls Dictators and Military Tribuns gave them only such Power and for such a time as best pleased themselves 't is impossible they should not have the same right in relation to Kings in making them what they please as well as not to make them unless they please except there be a Charm belonging to the Name or the Letters that compose it which cannot belong to all Nations for they are different in every one according to the several Languages But says our Author 't is for the Honor Profit and Safety of the People that the King should be glorious powerful and abounding in Riches There is therefore no obligation upon them and they are to judg whether it be so or not The Scripture says plainly the contrary He shall not multiply Silver and Gold Wives and Horses he shall not lift up his heart above his Brethren He shall not therefore be glorious powerful or abounding in Riches Reason and Experience teach us the same thing If those Nations that have bin proud luxurious and vicious have desired by Pomp and Riches to foment the Vices of their Princes thereby to cherish their own such as have excelled in Virtue and good Discipline have abhorred it and except the immediate exercise of their Office have kept their supreme Magistrates to a manner of living little different from that of private men and it had bin impossible to maintain that frugality in which the integrity of their manners did chiefly consist if they had set up an Example directly contrary to it in him who was to be an Example to others or to provide for their own safety if they had overthrown that integrity of manners by which it could only be obtained and preserved There is a necessity incumbent upon every Nation that lives in the like Principle to put a stop to the entrance of those Vices that arise from the superfluity of Riches by keeping their Kings in that honest Poverty which is the Mother and Nurse of Modesty Sobriety and all manner of Virtue And no man can deny this to be well done unless he will affirm that Pride Luxury and Vice is more profitable to a Nation than the Virtues that are upheld by frugality There is another reason of no less importance to those Nations who tho they think fit to have Kings yet desire to preserve their Liberty which obliges them to set limits to the Glory Power and Riches of their Kings and that is That they can no otherwise be kept within the Rules of the Law Men are naturally propense to corruption and if he whose Will and Interest it is to corrupt them be furnished with the means he will never fail to do it Power Honors Riches and the Pleasures that attend them are the baits by which men are drawn to prefer a personal Interest before the publick Good and the number of those who covet them is so great that he who abounds in them will be able to gain so many to his service as shall be sufficient to subdue the rest 'T is hard to find a Tyranny in the world that has not bin introduced this way for no man by his own strength could ever subdue a multitude none could ever bring many to be subservient to his ill designs but by the rewards they received or hoped By this means Cesar accomplished his work and overthrew the Liberty of his Country and with it all that was then good in the world They who were corrupted in their minds desired to put all the Power and Riches into his hands that he might distribute them to such as served him And he who was nothing less than covetous in his own nature desired Riches that he might gain Followers and by the plunder of Gaul he corrupted those that betray'd Rome to him And tho I do not delight to speak of the Affairs of our own time I desire those who know the present State of France to tell me whether it were possible for the King to keep that Nation under servitude if a vast Revenue did not enable him to gain so many to his particular service as are sufficient to keep the rest in subjection and if this be not enough let them consider whether all the dangers that now threaten us at home do not proceed from the madness of those who gave such a Revenue as is utterly unproportionable to the Riches of the Nation unsutable to the modest behaviour expected from our Kings and which in time will render Parliaments unnecessary
Kingdom of Israel they thought his first work would be to throw off the Roman Yoak and not believing him to be the man they would have brought him to avow the thing that they might destroy him But as that was not his business and that his time was not yet come it was not necessary to give them any other answer than such as might disappoint their purpose This shews that without detracting from the honor due to Austin Ambrose or Tertullian I may justly say that the decision of such questions as arise concerning our Government must be decided by our Laws and not by their Writings They were excellent Men but living in another time under a very different Government and applying themselves to other matters they had no knowledg at all of those that concern us They knew what Government they were under and thereupon judged what a broken and dispersed People ow'd to that which had given Law to the best part of the World before they were in being under which they had bin educated and which after a most cruel persecution was become propitious to them They knew that the Word of the Emperor was a Law to the Senate and People who were under the power of that man that could get the best Army but perhaps had never heard of such mixed Governments as ours tho about that time they began to appear in the world And it might be as reasonably concluded that there ought to be no rule in the Succession or Election of Princes because the Roman Emperors were set up by the violence of the Soldiers and for the most part by the slaughter of him who was in possession of the Power as that all other Princes must be absolute when they have it and do what they please till another more strong and more happy may by the like means wrest the same Power from them I am much mistaken if this be not true but without prejudice to our Cause we may take that which they say according to their true meaning in the utmost extent And to begin with Tertullian 'T is good to consider the subject of his Discourse and to whom he wrote The Treatise cited by our Author is the Apologetick and tends to perswade the Pagans that civil Magistrates might not intermeddle with Religion and that the Laws made by them touching those matters were of no value as relating to things of which they had no cognisance 'T is not says he length of time nor the dignity of the Legislators but equity only that can commend Laws and when any are found to be unjust they are deservedly condemned By which words he denied that the Magistratical Power which the Romans acknowledged in Cesar had any thing to do in spiritual things And little advantage can be taken by Christian Princes from what he says concerning the Roman Emperors for he expresly declares That the Cesars would have believed in Christ if they had either not bin necessary to the secular Government or that Christians might have bin Cesars This seems to have proceeded from an opinion received by Christians in the first Ages that the use of the Civil as well as the Military Sword was equally accursed That Christians were to be Sons of peace Enemies to no man and that Christ by commanding Peter to put up his Sword did for ever disarm all Christians He proceeds to say We cannot fight to defend our Goods having in our Baptism denounc'd the World and all that is in it nor to gain Honors accounting nothing more foreign to us than publick Affairs and acknowledging no other Commonwealth than that of the whole World Nor to save our lives because we account it a happiness to be killed He disswades the Pagans from executing Christians rather from charity to them in keeping them from the crime of slaughtering the Innocent than that they were unwilling to suffer and gives no other reasons of their Prayers for the Emperors than that they were commanded to love their Enemies and to pray for those who persecuted them except such as he drew from a mistake that the World was shortly to finish with the dissolution of the Empire All his Works as well those that were written before he fell into Montanism as those published afterwards are full of the like Opinions and if Filmer acknowledges them to be true he must confess That Princes are not Fathers but Enemies and not only they but all those who render themselves Ministers of the Powers they execute in taking upon them the Sword that Christ had cursed do renounce him and we may consider how to proceed with such as do so If our Author will not acknowledg this then no man was ever guilty of a more vile prevarication than he who alledges those words in favour of his Cause which have their only strength in Opinions that he thinks false and in the Authority of a man whom in that very thing he condemns and must do so or overthrow all that he endeavours to support But Tertullian's Opinions concerning these matters have no relation to our present Question The design of his Apology and the Treatise to Scapula almost upon the same subject was to show that the Civil Magistracy which he comprehends under the name of Cesar had nothing to do with matters of Religion and that as no man could be a Christian who would undertake the work of a Magistrate they who were jealous the publick Offices might be taken out of their hands had nothing to fear from Christians who resolved not to meddle with them Whereas our question is only Whether that Magistratical Power which by Law or Usurpation was then in Cesar must necessarily in all times and in all places be in one man or may be divided and balanced according to the Laws of every Country concerning which he says nothing Or whether we who do not renounce the use of the Civil or Military Sword who have a part in the Government and think it our duty to apply our selves to publick Cares should lay them aside because the antient Christians every hour expecting death did not trouble themselves with them If Ambrose after he was a Bishop employ'd the serocity of a Soldier which he still retained rather in advancing the power of the Clergy than the good of Mankind by restraining the rage of Tyrants it can be no prejudice to our Cause of which he had no cognisance He spoke of the violent and despotical Government to which he had bin a Minister before his Baptism and seems to have had no knowledg of the Gothick Polity that within a few years grew famous by the overthrow of the Roman Tyranny and delivering the world from the Yoak which it could no longer bear And if Austin might say That the Emperor is subject to no Laws because he has a Power of making Laws I may as justly say that our Kings are subject to Laws because they can make no Law and have
no Power but what is given by the Laws If this be not the case I desire to know who made the Laws to which they and their Predecessors have sworn and whether they can according to their own will abrogate those antient Laws by which they are made to be what they are and by which we enjoy what we have or whether they can make new Laws by their own Power If no man but our Author have impudence enough to assert any such thing and if all the Kings we ever had except Richard the second did renounce it we may conclude that Austin's words have no relation to our dispute and that 't were to no purpose to examine whether the Fathers mention any reservation of Power to the Laws of the Land or to the People it being as lawful for all Nations if they think fit to frame Governments different from those that were then in being as to build Bastions Halfmoons Hornworks Ravelins or Counterscarps or to make use of Muskets Cannon Mortars Carabines or Pistols which were unknown to them What Solomon says of the Hebrew Kings dos as little concern us We have already proved their Power not to have bin absolute tho greater than that which the Law allows to ours It might upon occasion be a prudent advice to private persons living under such Governments as were usual in the Eastern Countries to keep the King's Commandments and not to say What dost thou because where the Word of a King is there is Power and all that he pleaseth he will do But all these words are not his and those that are must not be taken in a general sense for tho his Son was a King yet in his words there was no power He could not do what he pleased nor hinder others from doing what they pleased He would have added weight to the Yoak that lay upon the necks of the Israelites but he could not and we do not find him to have bin master of much more than his own Tongue to speak as many foolish things as he pleased In other things whether he had to deal with his own people or with strangers he was weak and impotent and the wretches who flatter'd him in his follies could be of no help to him The like has befallen many others Those who are wise virtuous valiant just and lovers of their People have and ought to have Power but such as are lewd vicious foolish and haters of their People ought to have none and are often deprived of all This was well known to Solomon who says That a wise Child is better than an old and foolish King that will not be advised When Nabuchodonosor set himself in the place of God his Kingdom was taken from him and he was driven from the society of men to herd with beasts There was Power for a time in the word of Nero he murdered many excellent men but he was call'd to account and the World abandon'd the Monster it had too long endur'd He found none to defend him nor any better help when he desir'd to die than the hand of a Slave Besides this some Kings by their Institution have little Power some have bin deprived of what they had for abusing or rendring themselves unworthy of it and Histories afford us innumerable examples of both sorts But tho I should confess that there is always Power in the word of a King it would be nothing to us who dispute concerning Right and have no regard to that Power which is void of it A Thief or a Pyrat may have Power but that avails him not when as often befel the Cesars he meets with one who has more and is always unsafe since having no effect upon the Consciences of men every one may destroy him that can And I leave it to Kings to consider how much they stand obliged to those who placing their Rights upon the same foot expose their Persons to the same dangers But if Kings desire that in their Word there should be power let them take care that it be always accompanied with Truth and Justice Let them seek the good of their People and the hands of all good men will be with them Let them not exalt themselves insolently and every one will desire to exalt them Let them acknowledg themselves to be the Servants of the Publick and all men will be theirs Let such as are most addicted to them talk no more of Cesars nor the Tributes due to them We have nothing to do with the name of Cesar. They who at this day live under it reject the Prerogatives antiently usurped by those that had it and are govern'd by no other Laws than their own We know no Law to which we owe obedience but that of God and our selves Asiatick Slaves usually pay such Tributes as are imposed upon them and whilst braver Nations lay under the Roman Tyranny they were forced to submit to the same burdens But even those Tributes were paid for maintaining Armies Fleets and Garisons without which the poor and abject life they led could not have bin preserved We owe none but what we freely give None is or can be imposed upon us unless by our selves We measure our Grants according to our own Will or the present occasions for our own safety Our Ancestors were born free and as the best provision they could make for us they left us that Liberty intire with the best Laws they could devise to defend it 'T is no way impair'd by the Opinions of the Fathers The words of Solomon do rather confirm it The happiness of those who enjoy the like and the shameful misery they lie under who have suffer'd themselves to be forced or cheated out of it may perswade and the justice of the Cause encourage us to think nothing too dear to be hazarded in the defence of it SECT IX Our own Laws confirm to us the enjoyment of our native Rights IF that which our Author calls Divinity did reach the things in dispute between us or that the Opinions of the Fathers which he alledges related to them he might have spared the pains of examining our Laws for a municipal Sanction were of little force to confirm a perpetual and universal Law given by God to mankind and of no value against it since man cannot abrogate what God hath instituted nor one Nation free it self from a Law that is given to all But having abused the Scriptures and the Writings of the Fathers whose Opinions are to be valued only so far as they rightly interpret them he seems desirous to try whether he can as well put a false sense upon our Law and has fully compassed his design Aocording to his custom he takes pieces of passages from good Books and turns them directly against the plain meaning of the Authors expressed in the whole scope and design of their Writings To show that he intends to spare none he is not ashamed to cite Bracton who of all our antient Law-writers is
doing the like unless they have made municipal Laws of their own to the contrary which our Author and his Followers may produce when they can find them His next work is to go back again to the Tribute paid by Christ to Cesar and judiciously to infer that all Nations must pay the same Duty to their Magistrates as the Jews did to the Romans who had subdued them Christ did not says he ask what the Law of the Land was nor inquire whether there was a Statute against it nor whether the Tribute were given by the consent of the People but upon sight of the superscription concluded c. It had bin strange if Christ had inquired after their Laws Statutes or Consent when he knew that their Commonwealth with all the Laws by which it had subsisted was abolished and that Israel was become a Servant to those who exercised a most violent domination over them which being a peculiar punishment for their peculiar sins can have no influence upon Nations that are not under the same circumstances But of all that he says nothing is more incomprehensible than what he can mean by lawful Kings to whom all is due that was due to the Roman Usurpers For lawful Kings are Kings by the Law In being Kings by the Law they are such Kings as the Law makes them and that Law only must tell us what is due to them or by a universal Patriarchical Right to which no man can have a title as is said before till he prove himself to be the right Heir of Noah If neither of these are to be regarded but that Right follows Possession there is no such thing as a Usurper he who has the Power has the Right as indeed Filmer says and his Wisdom as well as his Integrity is sufficiently declared by the Assertion This wicked extravagancy is followed by an attempt of as singular ignorance and stupidity to shuffle together Usurpers and Conquerors as if they were the same whereas there have bin many Usurpers who were not Conquerors and Conquerors that deserved not the name of Usurpers No wife man ever said that Agathocles or Dionysius conquer'd Syracuse Tarquin Galba or Otho Rome Cromwel England or that the Magi who seiz'd the Government of Persia after the death of Cambyses conquer'd that Country When Moses and Joshua had overthrown the Kingdoms of the Amorites Moabites and Cananites or when David subdued the Ammonites Edomites and others none as I suppose but such Divines as Filmer will say they usurped a Dominion over them There is such a thing amongst men as just War or else true Valour would not be a Virtue but a Crime and instead of glory the utmost infamy would always be the companion of Victory There are says Grotius Laws of War as well as of Peace He who for a just Cause and by just Means carries on a just War has as clear a right to what is acquired as can be enjoy'd by Man but all usurpation is detestable and abominable SECT X. The words of St. Paul enjoying obedience to higher Powers favour all sorts of Governments no less than Monarchy OUR Author's next quarrel is with St. Paul who did not as he says in enjoyning subjection to the higher Powers signify the Laws of the Land or mean the highest Powers as well Aristocratical and Democratical as Regal but a Monarch that carries the Sword c. But what if there be no Monarch in the place or what if he do not carry the Sword Had the Apostle spoken in vain if the liberty of the Romans had not bin overthrown by the fraud and violence of Cesar Was no obedience to be exacted whilst that people enjoy'd the benefit of their own Laws and Virtue flourished under the moderate Government of a legal and just Magistracy established for the common good by the common consent of all Had God no Minister amongst them till Law and Justice was overthrown the best part of the people destroy'd by the fury of a corrupt mercenary Souldiery and the world subdued under the Tyranny of the worst Monsters that it had ever produced Are these the ways of establishing God's Vicegerents and will he patronize no Governors or Governments but such as these Do's God uphold evil and that only If the world has bin hitherto mistaken in giving the name of evil to that which is good and calling that good which is evil I desire to know what can be call'd good amongst men if the Government of the Romans till they entred Greece and Asia and were corrupted by the Luxury of both do not deserve that name or what is to be esteemed evil if the establishment and exercise of the Cesars Power were not so But says he Wilt thou not be afraid of the Power And was there no Power in the Governments that had no Monarchs Were the Carthaginians Romans Grecians Gauls Germans and Spaniards without Power Was there no Sword in that Nation and their Magistrates who overthrew the Kingdoms of Armenia Egypt Numidia Macedon and many others whom none of the Monarchs were able to resist Are the Venetians Switzers Grisons and Hollanders now lest in the same weakness and no obedience at all due to their Magistrates If this be so how comes it to pass that justice is so well administred amongst them Who is it that defends the Hollanders in such a manner that the greatest Monarchs with all their Swords have had no great reason to boast of any advantages gained against them at least till we whom they could not resist when we had no Monarch tho we have bin disgracefully beaten by them since we had one by making Leagues against them and sowing divisions amongst them instigated and assisted the greatest Power now in the world to their destruction and our own But our Author is so accustom'd to fraud that he never cites a passage of Scripture which he does not abuse or vitiate and that he may do the same in this place he leaves out the following words For there is no power but of God that he might intitle one sort only to his protection If therefore the People and popular Magistrates of Athens the two Kings Ephori and Senate of Sparta the Sanhedrims amongst the Hebrews the Consuls Tribuns Pretors and Senate of Rome the Magistrates of Holland Switzerland and Venice have or had power we may conclude that they also were ordained by God and that according to the precept of the Apostle the same obedience sor the same reason is due to them as to any Monarch The Apostle farther explaining himself and shewing who may be accounted a Magistrate and what the duty of such a one is informs us when we should fear and on what account Rulers says he are not a terror to good works but to the evil Wilt thou then not be afraid of the Power do that which is good and thou shalt have praise of the same for he is the Minister of God a revenger to execute wrath
upon him that doth evil He therefore is only the Minister of God who is not a terror to good works but to evil who executes wrath upon those that do evil and is a praise to those that do well And he who doth well ought not to be afraid of the power for he shall receive praise Now if our Author were alive tho he was a man of a hard forehead I would ask him whether in his Conscience he believed that Tiberius Caligula Claudius Nero and the rabble of succeeding Monsters were a praise to those who did well and a terror to those who did ill and not the contrary a praise to the worst and a terror to the best men of the world or for what reason Tacitus could say that virtue brought men who lived under them to certain destruction and recite so many Examples of the brave and good who were murder'd by them for being so unless they had endeavour'd to extinguish all that was good and to tear up virtue by the roots Why did he call Domitian an Enemy to virtue if he was a terror only to those that did evil If the world has hitherto bin misled in these things and given the name of Virtue to Vice and of Vice to Virtue then Germanicus Valerius Asiaticus Corbulo Helvidius Priscus Thraseas Soranus and others that resembled them who fell under the rage of those Beasts nay Paul himself and his Disciples were evil doers and Macro Narcissus Pallas Vinnius Laco and Tigellinus were virtuous and good men If this be so we are beholden to Filmer for admonishing mankind of the error in which they had so long continued If not those who persecuted and murder'd them for their Virtues were not a terror to such as did evil and a praise to those who did well The worst men had no need to fear them but the best had because they were the best All Princes therefore that have power are not to be esteemed equally the Ministers of God They that are so must receive their dignity from a title that is not common to all even from a just emploiment of their power to the incouragement of Virtue and to the discouragement of Vice He that pretends to the veneration and obedience due to the Ministers of God must by his actions manifest that he is so And tho I am unwilling to advance a proposition that may sound harshly to tender ears I am inclined to believe that the same rule which obliges us to yield obedience to the good Magistrate who is the Minister of God and assures us that in obeying him we obey God dos equally oblige us not to obey those who make themselves the Ministers of the Devil lest in obeying them we obey the Devil whose works they do That none but such as are wilfully ignorant may mistake Pauls meaning Peter who was directed by the same Spirit says distinctly Submit your selves to every Ordinance of man for the Lord's sake If therefore there be several Ordinances of men tending to the same end that is the obtaining of justice by being a terror to the evil and a praise to the good the like obedience is for conscience sake enjoined to all and upon the same condition But as no man dares to say that Athens and Persia Carthage and Egypt Switzerland and France Venice and Turky were and are under the same Government the same obedience is due to the Magistrate in every one of those places and all others on the same account whilst they continue to be the Ministers of God If our Author say that Peter cannot comprehend Kings under the name of human Ordinances since Paul says they are the Ordinance of God I may as well say that Paul cannot call that the Ordinance of God which Peter calls the ordinance of man But as it was said of Moses and Samuel that they who spoke by the same Spirit could not contradict each other Peter and Paul being full of Wisdom and Sanctity and inspir'd by the same Spirit must needs say the same thing and Grotius shews that they perfectly agree tho the one calls Kings Rulers and Governors the Ordinance of Man and the other the Ordinance of God inasmuch as God having from the beginning ordained that men should not live like Wolves in woods every man by himself but together in Civil Societies left to every one a liberty of joyning with that Society which best pleas'd him and to every Society to create such Magistrates and frame such Laws as should seem most conducing to their own good according to the measure of light and reason they might have And every Magistracy so inflituted might rightly be called the Ordinance of man who was the Instituter and the Ordinance of God according to which it was instituted because says he God approved and ratified the salutary Constitutions of Government made by men But says our Author Peter expounds his own words of the human Ordinance to be the King who is the Lex loguens but he says no such thing and I do not find that any such thought ever enter'd into the Apostle's mind The words are often found in the works of Plato and Aristotle but applied only to such a man as is a King by nature who is endow'd with all the virtues that tend to the good of human Societies in a greater measure than any or all those that compose them which Character I think will be ill applied to all Kings And that this may appear to be true I desire to know whether it would well have agreed with Nero Caligula Domitian or others like to them and if not with them then not with all but only with those who are endow'd with such Virtues But if the King be made by man he must be such as man makes him to be and if the power of a Law had bin given by any human Sanction to the word of a foolish mad or wicked man which I hardly believe it would be destroy'd by its own iniquity and turpitude and the People left under the obligation of rendring obedience to those who so use the Sword that the Nations under them may live soberly peaceably and honestly This obliges me a little to examin what is meant by the Sword The Pope says there are two Swords the one temporal the other spiritual and that both of them were given to Peter and to his Successors Others more rightly understand the two Swords to be that of War and that of Justice which according to several Constitutions of Governments have bin committed to several hands under several conditions and limitations The Sword of Justice comprehends the legislative and the executive Power the one is exercised in making Laws the other in judging Controversies according to such as are made The military Sword is used by those Magistrates who have it in making War or Peace with whom they think fit and sometimes by others who have it not in pursuing such Wars as are
folly than we are to live in that wretched Barbarity in which the Romans found our Ancestors when they first entred this Island If any man say that Filmer dos not speak of Monsters nor of Children Women or Fools but of wise just and good Princes I answer that if there be a right inherent in Kings as Kings of doing what they please and in those who are next in blood to succeed them and inherit the same it must belong to all Kings and such as upon title of blood would be Kings And as there is no family that may not and dos not often produce such as I mentioned it must also be acknowledged in them and that power which is left to the wife just and good upon a supposition that they will not make an ill use of it must be devolved to those who will not or cannot make a good one but will either maliciously turn it to the destruction of those they ought to protect or through weakness suffer it to fall into the hands of those that govern them who are found by experience to be for the most part the worst of all most apt to use the basest arts and to flatter the humors and foment the vices that are most prevalent in weak and vicious Princes Germanicus Corbulo Valerius Asiaticus Thraseas Soranus Helvidius Priscus Julius Agricola and other excellent men lived in the times of Tiberius Caligula Claudius and Nero but the power was put into the hands of Sejanus Macro Tigellinus and other Villains like to them and I wish there were not too many modern examples to shew that weak and vicious Princes will never chuse such as shall preserve Nations from the mischiefs that would ensue upon their own incapacity or malice but that they must be imposed upon them by some other power or Nations be ruined for want of them This imposition must be by Law or by Force But as Laws are made to keep things in good order without the necessity of having recourse to force it would be a dangerous extravagance to arm that Prince with force which probably in a short time must be opposed by force and those who have bin guilty of this error as the Kingdoms of the East and the antient Roman Empire where no provision was made by Law against ill-governing Princes have found no other remedy than to kill them when by extreme sufferings they were driven beyond patience and this fell out so often that few of their Princes were observed to die by a common death But since the Empire was transmitted to Germany and the Emperors restrain'd by Laws that Nation has never bin brought to the odious extremities of suffering all manner of Indignities or revenging them upon the heads of Princes And if the Pope had not disturb'd them upon the account of Religion nor driven their Princes to disturb others they might have passed many ages without any civil Dissension and all their Emperors might have lived happily and died peaceably as most of them have done This might be sufficient to my purpose for if all Princes without distinction whether good or bad wise or foolish young or old sober or mad cannot be intrusted with an unlimited power and if the power they have ought to be limited by Law that Nations may not with danger to themselves as well as to the Prince have recourse to the last remedy this Law must be given to all and the good can be no otherwise distinguished from the bad and the wise from the foolish than by the observation or violation of it But I may justly go a step farther and affirm that this Law which by restraining the Lusts of the vicious and foolish frequently preserves them from the destruction they would bring upon themselves or people and sometimes upon both is an assistance and direction to the wisest and best so that they also as well as the Nations under them are gainers by it This will appear strange only to those who know not how difficult and insupportable the Government of great Nations is and how unable the best man is to bear it And if it surpass the strength of the best it may easily be determined how ordinary men will behave themselves under it or what use the worst will make of it I know there have bin wise and good Kings but they had not an absolute Power nor would have accepted it tho it had bin offer'd much less can I believe that any of them would have transmitted such a power to their posterity when none of them could know any more than Solomon whether his Son would be a wise man or a fool But if the best might have desired and had bin able to bear it tho Moses by his own confession was not that could be no reason why it should be given to the worst and weakest or those who probably will be so Since the assurance that it will not be abused during the life of one man is nothing to the constitution of a State which aims at perpetuity And no man knowing what men will be especially if they come to the power by succession which may properly enough be called by chance 't is reasonably to be feared they will be bad and consequently necessary so to limit their power that if they prove to be so the Commonwealth may not be destroy'd which they were instituted to preserve The Law provides for this in leaving to the King a full and ample power of doing as much good as his heart can wish and in restraining his power so that if he should depart from the duty of his Office the Nation may not perish This is a help to those who are wise and good by directing them what they are to do more certainly than any one mans personal judgment can do and no prejudice at all since no such man did ever complain he was not suffer'd to do the evil which he would abhor if it were in his power and is a most necessary curb to the sury of bad Princes preventing them from bringing destruction upon the people Men are so subject to vices and passions that they stand in need of some restraint in every condition but most especially when they are in power The rage of a private man may be pernicious to one or a few of his Neighbours but the fury of an unlimited Prince would drive whole Nations into ruin And those very men who have lived modestly when they had little power have often proved the most savage of all Monsters when they thought nothing able to resist their rage 'T is said of Caligula that no man ever knew a better Servant nor a worse Master The want of restraint made him a Beast who might have continued to be a Man And tho I cannot say that our Law necessarily admits the next in Blood to the Succession for the contrary is proved yet the facility of our Ancestors in receiving children women or such men as were not more
except such as are like Filmer who by bidding defiance to the Laws of God and Man seems to declare war against both whom I would not trust to determine whether a People that can never fall into Nonage or Dotage and can never fail of having men of Wisdom and Virtue amongst them be not more fit to judg in their own Persons or by Representatives what conduces to their own good than one who at a venture may be born in a certain Family and who besides his own Infirmities Passions Vices or Interests is continually surrounded by such as endeavour to divert him from the ways of Truth and Justice And if no reasonable man dare prefer the latter before the former we must rely upon the Laws made by our Forefathers and interpreted by the Nation and not upon the will of a man 'T is in vain to say that a wise and good Council may supply the defects or correct the Vices of a young foolish or ill disposed King For Filmer denies that a King whatever he be without exception for he attributes profound wisdom to all is obliged to follow the advice of his Council and even he would hardly have had the impudence to say That good Counsel given to a foolish or wicked Prince were of any value unless he were obliged to follow it This Council must be chosen by him or imposed upon him if it be imposed upon him it must be by a power that is above him which he says cannot be If chosen by him who is weak foolish or wicked it can never be good because such virtue and wisdom is requir'd to discern and chuse a few good and wise men from a multitude of foolish and bad as he has not And it will generally fall out that he will take for his Counsellors rather those he believes to be addicted to his Person or Interests than such as are fitly qualified to perform the duty of their places But if he should by chance or contrary to his intentions make choice of some good and wise men the matter would not be much mended for they will certainly differ in opinion from the worst And tho the Prince should intend well of which there is no assurance nor any reason to put so great a power into his hands if there be none 't is almost impossible for him to avoid the snares that will be laid ro seduce him I know not how to put a better face upon this matter for if I examine rather what is probable than possible foolish or ill Princes will never chuse such as are wise and good but favouring those who are most like to themselves will prefer such as second their vices humours and personal Interests and by so doing will rather fortify and rivet the evils that are brought upon the Nation through their defects than cure them This was evident in Rehoboam he had good Counsel but he would not hearken to it We know too many of the same sort and tho it were not impossible as Macchiavelli says it is for a weak Prince to receive any benefit from a good Council we may certainly conclude that a People can never expect any good from a Council chosen by one who is weak or vicious If a Council be imposed upon him and he be obliged to follow their advice it must be imposed by a Power that is above him his Will therefore is not a Law but must be regulated by the Law the Monarchy is not above the Law and if we will believe our Author 't is no Monarchy because the Monarch has not his will and perhaps he says true For if that be not an Aristocracy where those that are or are reputed to be the best do govern then that is certainly a mixed State in which the will of one man dos not prevail But if Princes are not obliged by the Law all that is founded upon that supposition falls to the ground They will always sollow their own humours or the suggestions of those who second them Tiberius hearkned to none but Chaldeans or the ministers of his impurities and cruelties Claudius was governed by Slaves and the profligate Strumpets his Wives There were many wise and good men in the Senate during the reigns of Caligula Nero and Domitian but instead of following their Counsel they endeavour'd to destroy them all lest they should head the People against them and such Princes as resemble them will always follow the like courses If I often repeat these hateful names 't is not for want of sresher examples of the same nature but I chuse such as Mankind has universally condemn'd against whom I can have no other cause of hatred than what is common to all those who have any love to virtue and which can have no other relation to the Controversies of later Ages than what may flow from the similitude of their causes rather than such as are too well known to us and which every man according to the measure of his experience may call to mind in reading these I may also add that as nothing is to be received as a general Maxim which is not generally true I need no more to overthrow such as Filmer proposes than to prove how frequently they have bin found false and what desperate mischiefs have bin brought upon the World as often as they have bin practised and excessive Powers put into the hands of such as had neither inclination nor ability to make a good use of them 1. But if the safety of Nations be the end for which Governments are instituted such as take upon them to govern by what Title soever are by the Law of Nature bound to procure it and in order to this to preserve the Lives Lands Liberties and Goods of every one of their Subjects and he that upon any title whatsoever pretends assumes or exercises a power of disposing of them according to his will violates the Laws of Nature in the highest degree 2. If all Princes are obliged by the Law of Nature to preserve the Lands Goods Lives and Liberties of their Subjects those Subjects have by the Law of Nature a right to their Liberties Lands Goods c. and cannot depend upon the will of any man for that dependence destroys Liberty c. 3. Ill men will not and weak men cannot provide for the safety of the People nay the work is of such extreme difficulty that the greatest and wisest men that have bin in the world are not able by themselves to perform it and the assistance of Counsel is of no use unless Princes are obliged to follow it There must be therefore a power in every State to restrain the ill and to instruct weak Princes by obliging them to follow the Counsels given else the ends of Government cannot be accomplished nor the rights of Nations preserved All this being no more than is said by our Author or necessarily to be deduced from his Propositions one would think he were become as good
2d which he swears to abolish Now what Laws are upright and what evil who shall judg but the King c. So that in effect the King doth swear to keep no Laws but such as in his judgment are upright c. And if he did strictly swear to observe all Laws he could not without Perjury give his consent to the repealing or abrogating of any Statute by Act of Parliament c. And again But let it be supposed for Truth that Kings do swear to observe all Laws of their Kingdoms yet no man can think it reason that the Kings should be more bound by their voluntary Oaths than common Persons Now if a private Person make a Contract either with Oath or without Oath he is no farther bound than the equity and justice of the Contract ties him for a man may have relief against an unreasonable and unjust Promise if either deceit or error force or fear induced him thereunto or if it be hurtful or grievous in the performance since the Law in many cases gives the King a Prerogative above common persons Lest I should be thought to insist upon small advantages I will not oblige any man to shew where Filmer found this Oath nor observe the faults committed in the Translation but notwithstanding his false representation I find enough for my purpose and intend to take it in his own words But first I shall take leave to remark that those who for private interests addict themselves to the personal service of Princes tho the ruin of their Country find it impossible to perswade Mankind that Kings may govern as they please when all men know there are Laws to direct and restrain them unless they can make men believe they have their power from a universal and superior Law or that Princes can attempt to dissolve the obligations laid upon them by the Laws which they so solemnly swear to observe without rendring themselves detestable to God and Man and subject to the revenging hands of both unless they can invalidate those Oaths Mr. Hobbes I think was the first who very ingeniously contrived a compendious way of justifying the most abominable Perjuries and all the mischiefs ensuing thereupon by pretending that as the King's Oath is made to the People the People may absolve him from the obligation and that the People having conferred upon him all the Power they had he can do all that they could he can therefore absolve himself and is actually free since he is so when he pleases This is only false in the minor for the People not having conferred upon him all but only a part of their Power that of absolving him remains in themselves otherwise they would never have obliged him to take the Oath He cannot therefore absolve himself The Pope finds a help for this and as Christ's Vicar pretends the power of Absolution to be in him and exercised it in absolving King John But our Author despairing to impose either of these upon our Age and Nation with more impudence and less wit would enervate all Coronation-Oaths by subjecting them to the discretion of the taker whereas all men have hitherto thought their force to consist in the declared sense of those who give them This doctrine is so new that it surpasses the subtilty of the Schoolmen who as an ingenious Person said of them had minced Oaths so fine that a million of them as well as Angels may stand upon the point of a needle and were never yet equalled but by the Jesuits who have overthrown them by mental reservations which is so clearly demonstrated from their books that it cannot be denied but so horrible that even those of their own Order who have the least spark of common honesty condemn the practice And one of them being a Gentleman of a good family told me he would go the next day and take all the Oaths that should be offer'd if he could satisfy his conscience in using any manner of equivocation or mental reservation or that he might put any other sense upon them than he knew to be intended by those who offer'd them And if our Author's conscience were not more corrupted than that of the Jesuit who had lived fifty years under the worst Discipline that I think ever was in the world I would ask him seriously if he truly believe that the Nobility Clergy and Commonalty of England who have bin always so zealous for their antient Laws and so resolute in defending them did mean no more by the Oaths they so solemnly imposed and upon which they laid so much weight than that the King should swear to keep them so far only as he should think fit But he swears only to observe those that are upright c. How can that be understood otherwise than that those who give the Oath do declare their Laws and Customs to be upright and good and he by taking the Oath affirms them to be so Or how can they be more precisely specified than by the ensuing Clause Granted from God by just and devout Kings by Oath especially those of the famous King Edward But says he by the same Oath Richard the 2d was bound to abolish those that were evil If any such had crept in through error or bin obtruded by malice the evil being discovered and declared by the Nobility and Commons who were concerned he was not to take advantage of them or by his refusal to evade the abolition but to join with his people in annulling them according to the general Clause of assenting to those Quas vulgus elegerit Magna Charta being only an abridgment of our antient Laws and Customs the King that swears to it swears to them all and not being admitted to be the interpreter of it or to determin what is good or evil fit to be observed or annulled in it can have no more power over the rest This having bin confirmed by more Parliaments than we have had Kings since that time the same obligation must still lie upon them all as upon John and Henry in whose time that claim of right was compiled The Act was no less solemn than important and the most dreadful curses that could be conceived in words which were denounced against such as should any way infringe it by the Clergy in Westminster-Hall in the presence and with the assent of K. Henry the 3d many of the principal Nobility and all the Estates of the Kingdom shew whether it was referred to the King's Judgment or not when 't is evident they feared the violation from no other than himself and such as he should employ I confess the Church as they then called the Clergy was fallen into such corruption that their Arms were not much to be feared by one who had his conscience clear but that could not be in the case of perjury and our Ancestors could do no better than to employ the spiritual sword reserving to themselves the use of the other in case that should be
may be alledged From which we may safely conclude that if the death of one King do really invest the next Heir with the Right and Power or that he who is so invested be subject to no Law but his own Will all matters relating to that Kingdom must have bin horribly confused during the reigns of 22 Kings of Pharamonds race they can have had no rightful King from the death of Chilperic to King John and the Succession since that time is very liable to be questioned if not utterly overthrown by the house of Austria and others who by the Counts of Hapsburg derive their Descent from Pharamond and by the house of Lorrain claiming from Charles who was excluded by Capet all which is most absurd and they who pretend it bring as much confusion into their own Laws and upon the Polity of their own Nation as shame and guilt upon the memory of their Ancestors who by the most extreme injustice have rejected their natural Lord or dispossessed those who had bin in the most solemn manner placed in the Government and to whom they had generally sworn Allegiance 3. If the next Heir be actually King seized of the power by the death of his Predecessor so that there is no intermission then all the Solemnities and religious Ceremonies used at the Coronations of their Kings with the Oaths given and taken are the most profane abuses of sacred things in contempt of God and Man that can be imagined most especially if the Act be as our Author calls it voluntary and the King receiving nothing by it be bound to keep it no longer than he pleases The Prince who is to be sworn might spare the pains of watching all night in the Church fasting praying confessing communicating and swearing that he will to the utmost of his power defend the Clergy maintain the union of the Church obviate all excess rapine extortion and iniquity take care that in all judgments Justice may be observed with Equity and Mercy c. or of invoking the assistance of the Holy Ghost for the better performance of his Oath and without ceremony tell the Nobility and People that he would do what he thought fit 'T were to as little purpose for the Archbishop of Rheims to take the trouble of saying Mass delivering to him the Crown Scepter and other ensigns of Royalty explaining what is signified by them anointing him with the Oil which they say was deliver'd by an Angel to St. Remigius blessing him and praying to God to bless him if he rightly performed his Oath to God and the People and denouncing the contrary in case of failure on his part if these things conferred nothing upon him but what he had before and were of no obligation to him Such ludifications of the most sacred things are too odious and impious to be imputed to Nations that have any virtue or profess Christianity This cannot fall upon the French and Spaniards who had certainly a great zeal to Religion whatever it was and were so eminent for moral Virtues as to be a reproach to us who live in an Age of more Knowledg But their meaning is so well declared by their most solemn Acts that none but those who are wilfully ignorant can mistake One of the Councils held at Toledo declared by the Clergy Nobility and others assisting That no man should be placed in the Royal Seat till he had sworn to preserve the Church c. Another held in the same place signified to Sisinandus who was then newly crown'd That if he or any of his Successors should contrary to their Oaths and the Laws of their Country proudly and cruelly presume to exercise Domination over them he should be excommunicated and separated from Christ and them to eternal judgment The French Laws and their best Writers asserting the same things are confirmed by perpetual practice Henry of Navarr tho certainly according to their Rules and in their esteem a most accomplish'd Prince was by two General Assemblies of the Estates held at Blois deprived of the Succession for being a Protestant and notwithstanding the greatness of his Reputation Valour Victories and Affability could never be admitted till he had made himself capable of the ceremonies of his Coronation by conforming to the Religion which by the Oath he was to defend Nay this present King tho haughty enough by nature and elevated by many successes has acknowledged as he says with joy that he can do nothing contrary to Law and calls it a happy impotence in pursuance of which he has annulled many Acts of his Father and Grandfather alienating the demeasnes of the Crown as things contrary to Law and not within their power These things being confirmed by all the good Authors of that Nation Filmer finds only the worst to be fit for his turn and neither minding Law nor History takes his Maxims from a vile flattering discourse of Bellay calculated for the personal interest of Henry the fourth then King of Navarr in which he says That the Heir apparent tho furious mad a fool vicious and in all respects abominably wicked must be admitted to the Crown But Bellay was so far from attaining the ends designed by his Book that by such Doctrines which filled all men with horror he brought great prejudice to his Master and procured little favour from Henry who desired rather to recommend himself to his People as the best man they could set up than to impose a necessity upon them of taking him if he had bin the worst But our Author not contented with what this Sycophant says in relation to such Princes as are placed in the Government by a Law establishing the Succession by inheritance with an impudence peculiar to himself asserts the same right to be in any man who by any means gets into Power and imposes the same necessity of obedience upon the Subject where there is no Law as Bellay dos by virtue of one that is established 4. In the last place As Bellay acknowledges that the right belongs to Princes only where 't is established by Law I deny that there is was or ever can be any such No People is known to have bin so mad or wicked as by their own consent for their own good and for the obtaining of Justice to give the power to Beasts under whom it could never be obtain'd or if we could believe that any had bin guilty of an act so full of folly turpitude and wickedness it could not have the force of a Law and could never be put in execution for tho the rules by which the proximity should be judged be never so precise it will still be doubted whose case sutes best with them Tho the Law in some places gives private Inheritances to the next Heir and in others makes allotments according to several proportions no one knows to whom or how far the benefit shall accrue to any man till it be adjudged by a Power to which the parties
must submit Contests will in the like manner arise concerning successions to Crowns how exactly soever they be disposed by Law For tho every one will say that the next ought to succeed yet no man knows who is the next which is too much verified by the bloody decisions of such disputes in many parts of the world and he that says the next in blood is actually King makes all questions thereupon arising impossible to be otherwise determined than by the Sword the pretender to the right being placed above the judgment of man and the Subjects for any thing I know obliged to believe serve and obey him if he says he has it For otherwise if either every man in particular or all together have a right of judging his title it can be of no value till it be adjudged I confess that the Law of France by the utter exclusion of Females and their descendents dos obviate many dangerous and inextricable difficulties but others remain which are sufficient to subvert all the Polity of that Kingdom if there be not a power of judging them and there can be none if it be true that Le mort saisit le vif Not to trouble my self with seigned cases that of Legitimation alone will suffice 'T is not enough to say that the Children born under marriage are to be reputed legitimate for not only several Children born of Joan Daughter to the King of Portugal Wife to Henry the Fourth of Castille during the time of their Marriage were utterly rejected as begotten in Adultery but also her Daughter Joan whom the King during his life and at the hour of his death acknowledged to have bin begotten by him and the only Title that Isabel who was married to Ferdinand of Arragon had to the Crown of Spain was derived from their rejection It would be tedious and might give offence to many great Persons if I should relate all the dubious cases that have bin or still remain in the World touching matters of this nature but the Lawyers of all Nations will testify that hardly any one point comes before them which affords a greater number of difficult Cases than that of Marriages and the Legitimation of Children upon them and Nations must be involved in the most inextricable difficulties if there be not a power somewhere to decide them which cannot be if there be no intermission and that the next in blood that is he who says he is the next be immediately invested with the right and power But surely no people has bin so careless of their most important Concernments to leave them in such uncertainty and simply to depend upon the humour of a man or the faith of women who besides their other Frailties have bin often accused of supposititious Births and mens passions are known to be so violent in relation to Women they love or hate that none can safely be trusted with those Judgments The virtue of the best would be exposed to a temptation that flesh and blood can hardly resist and such as are less perfect would follow no other rule than the blind impulse of the passion that for the present reigns in them There must therefore be a judg of such disputes as may in these cases arise in every Kingdom and tho 't is not my business to determine who is that judg in all places yet I may justly say that in England it is the Parliament If no inferiour Authority could debar Ignotus Son to the Lady Rosse born under the Protection from the inheritance of a private Family none can certainly assume a power of disposing of the Crown upon any occasion No Authority but that of the Parliament could legitimate the Children of Catherine Swinford with a proviso not to extend to the inheritance of the Crown Others might say if they were lawfully begotten they ought to inherit every thing and nothing if they were not But the Parliament knew how to limit a particular favour and prevent it from extending to a publick mischief Henry the Eighth took an expeditious way of obviating part of the Controversies that might arise from the multitude of his Wives by cutting off the heads of some as soon as he was weary of them or had a mind to take another but having bin hinder'd from dealing in the same manner with Catherine by the greatness of her birth and kindred he left such as the Parliament only could resolve And no less power would ever have thought of making Mary and Elizabeth capable of the succession when according to ordinary rules one of them must have bin a Bastard and it had bin absurd to say that both of them were immediately upon the death of their Predecessors possess'd of the Crown if an Act of Parliament had not conferred the right upon them which they could not have by birth But the Kings and Princes of England have not bin of a temper different from those of other Nations and many Examples may be brought of the like occasions of dispute happening every where and the like will probably be for ever which must necessarily introduce the most mischievous confusions and expose the Titles which as is pretended are to be esteemed most sacred to be overthrown by violence and fraud if there be not in all places a Power of deciding the controversies that arise from the uncertainty of Titles according to the respective Laws of every Nation upon which they are grounded No man can be thought to have a just Title till it be so adjudged by that power This judgment is the first step to the Throne The Oath taken by the King obliges him to observe the Laws of his Country and that concerning the succession being one of the principal he is obliged to keep that part as well as any other SECT XIX The greatest Enemy of a just Magistrate is he who endeavours to invalidate the Contract between him and the People or to corrupt their Manners 'T Is not only from Religion but from the Law of Nature that we learn the necessity of standing to the agreements we make and he who departs from the principle written in the hearts of men Pactis standum seems to degenerate into a beast Such as had virtue tho without true religion could tell us as a brave and excellent Grecian did that it was not necessary for him to live but it was necessary to preserve his Heart from deceit and his Tongue from falshood The Roman Satyrist carries the same Notion to a great height and affirms that tho the worst of Tyrants should command a man to be false and persar'd and back his injunction with the utmost of Torments he ought to prefer his integrity before his life And tho Filmer may be excused if he often mistake in matters of Theology yet his Inclinations to Rome which he prefers before Geneva might have led him to the Principles in which the honest Romans lived if he had not observed that such Principles as make men
Law of God Perhaps for want of other Arguments to prove the contrary I may be told that this savours too much of Puritanism and Calvinism But I shall take the reproach till some better Patrons than Laud and his creatures may be found for the other opinion By the advice and instigation of these men from about the year 1630 to 1640 sports and revelings which ended for the most part in drunkenness and lewdness were not only permitted on that day but enjoined And tho this did advance human Authority in derogation to the Divine to a degree that may please such as are of our Author's mind yet others resolving rather to obey the Laws of God than the Commands of Men could not be brought to pass the Lord's day in that manner Since that time no man except Filmer and Heylin has bin so wicked to conceive or so impudent to assert such brutal absurdities But leaving the farther consideration of the original of this abuse I desire to know whether the Authority given to Masters to command things contrary to the Law of God be peculiar in relation to the Sabbath or to a few other points or ought generally to extend to all God's Laws and whether he who may command his Servant to act contrary to the Law of God have not a right in himself of doing the same If peculiar some Authority or Precept must be produced by which it may appear that God has slighted his Ordinance concerning that day and suffer'd it to be contemned whilst he exacts obedience to all others If we have a liberty left to us of slighting others also more or less in number we ought to know how many what they are and how it comes to pass that some are of obligation and others not If the Empire of the world is not only divided between God and Cesar but every man also who can give five pounds a year to a Servant has so great a part in it that in some cases his commands are to be obeyed preferably to those of God it were fit to know the limits of each Kingdom lest we happen preposterously to obey man when we ought to obey God or God when we are to follow the commands of men If it be general the Law of God is of no effect and we may safely put an end to all thoughts and discourses of Religion the word of God is nothing to us we are not to enquire what he has commanded but what pleases our Master how insolent foolish vile or wicked soever he may be The Apostles and Prophets who died for preferring the commands of God before those of men fell like fools and perished in their sins But if every particular man that has a servant can exempt him from the commands of God he may also exempt himself and the Laws of God are at once abrogated throughout the world 'T is a folly to say there is a passive as well as an active Obedience and that he who will not do what his Master commands ought to suffer the punishment he inflicts for if the Master has a right of commanding there is a duty incumbent on the servant of obeying He that suffers for not doing that which he ought to do draws upon himself both the guilt and the punishment But no one can be obliged to suffer for that which he ought not to do because he who pretends to command has not so far an Authority However our question is whether the Servant should forbear to do that which God commands rather than whether the Master should put away or beat him if he do not for if the Servant ought to obey his Master rather than God as our Author says the best Divines assert he sins in disobeying and that guilt cannot be expiated by his suffering If it be thought I carry this point to an undue extremity the limits ought to be demonstrated by which it may appear that I exceed them tho the nature of the case cannot be altered for if the Law of God may not be abrogated by the commands of men a Servant cannot be exempted from keeping the Sabbath according to the Ordinance of God at the will of his Master But if a power be given to man at his pleasure to annul the Laws of God the Apostles ought not to have preached when they were forbidden by the Powers to which they were subject The tortures and deaths they suffer'd for not obeying that command were in their own wrong and their blood was upon their own heads His second instance concerning Wars in which he says the Subject is not to examine whether they are just or unjust but must obey is weak and frivolous and very often false whereas consequences can rightly be drawn from such things only as are certainly and universally true Tho God may be merciful to a Soldier who by the wickedness of a Magistrate whom he honestly trusts is made a Minister of injustice 't is nothing to this case For if our Author say true that the word of a King can justify him in going against the command of God he must do what is commanded tho he think it evil The Christian Soldiers under the Pagan Emperors were obliged to destroy their Brethren and the best men in the world for being so Such as now live under the Turk have the same obligation upon them of defending their Master and slaughtering those he reputes his Enemies for adhering to Christianity And the King of France may when he pleases arm one part of his Protestant Subjects to the destruction of the other which is a godly doctrine and worthy our Author's invention But if this be so I know not how the Israelites can be said to have sinned in following the examples of Jeroboam Omri Ahab or other wicked Kings they could not have sinned in obeying if it had bin a sin to disobey their commands and God would not have punished them so severely if they had not sinned 'T is impertinent to say they were obliged to serve their Kings in unjust Wars but not to serve Idols for tho God be jealous of his glory yet he forbids Rapine and Murder as well as Idolatry If there be a Law that forbids the Subject to examine the commands tending to the one it cannot but enjoin obedience to the other The same Authority which justifies Murder takes away the guilt of Idolatry and the Wretches both Judges and Witnesses who put Naboth to death could as little alledg ignorance as those that worshipped Jeroboam's Calves the same light of Nature by which they should have known that a ridiculous Image was not to be adored as God instructing them also that an innocent man ought not under pretence of Law to be murdered by perjury S E C T. XXI It cannot be for the good of the People that the Magistrate have a power above the Law and he is not a Magistrate who has not his power by Law THAT we may not be displeased or think it
amongst men that there are few examples of the contrary And as 't is folly to suppose that Princes will always be wise just and good when we know that few have bin able alone to bear the weight of a Government or to resist the temptations to ill that accompany an unlimited power it would be madness to presume they will for the future be free from infirmities and vices And if they be not the Nations under them will not be in such a condition of servitude to a good Master as the Poet compares to Liberty but in a miserable and shameful subjection to the will of those who know not how to govern themselves or to do good to others The Moses Joshua and Samuel had bin able to bear the weight of an unrestrained Power though David and Solomon had never abused that which they had what effect could this have upon a general Proposition Where are the Families that always produce such as they were When did God promise to assist all those who should attain to the Soveraign Power as he did them whom he chose for the works he designed Or what testimony can Filmer give us that he has bin present with all those who have hitherto reigned in the world But if we know that no such thing either is or has bin and can find no promise to assure us nor reason to hope that it ever will be 't is as foolish to found the hopes of preserving a People upon that which never was or is so likely to fail nay rather which in a short time most certainly will fail as to root up Vines and Figtrees in expectation of gathering grapes and figs from thistles and briars This would be no less than to extinguish the light of common sense to neglect the means that God has given us to provide for our security and to impute to him a disposition of things utterly inconsistent with his Wisdom and Goodness If he has not therefore order'd that thorns and thistles should produce figs and grapes nor that the most important works in the world which are not without the utmost difficulty if at all to be performed by the best and wisest of men should be put into the hands of the weakest most foolish and worst he cannot have ordain'd that such men women or children as happen to be born in reigning Families or get the power into their hands by fraud treachery or murder as very many have done should have a right of disposing all things according to their will And if men cannot be guilty of so great an absurdity to trust the weakest and worst with a Power which usually subverts the Wisdom and Virtue of the best or to expect such effects of Virtue and Wisdom from those who come by chance as can hardly if at all be hoped from the most excellent our Author's Proposition can neither be grounded upon the Ordinance of God nor the Institution of man Nay if any such thing had bin established by our first Parents in their simplicity the utter impossibility of attaining what they expected from it must wholly have abrogated the Establishment Or rather it had bin void from the beginning because it was not a just Sanction commanding things good and forbidding the contrary but a foolish and perverse Sanction setting up the unruly appetite of one person to the subversion of all that is good in the world by making the wisdom of the aged and experienc'd to depend upon the will of Women Children and Fools by sending the strong and the brave to seek protection from the most weak and cowardly and subjecting the most virtuous and best of men to be destroy'd by the most wicked and vicious These being the effects of that unlimited prerogative which our Author says was only instituted for the good and defence of the people it must necessarily fall to the ground unless slavery misery infamy destruction and desolation tend to the preservation of Liberty and are to be prefer'd before strength glory plenty security and happiness The state of the Roman Empire after the Usurpation of Cesar will set this matter in the clearest light but having done it already in the former parts of this work I content my self to refer to those places And tho the Calamities they suffer'd were a little allayed and moderated by the Virtues of Antoninus and M. Aurelius with one or two more yet we have no example of the continuance of them in a family nor of any Nation great or small that has bin under an absolute Power which dos not too plainly manifest that no man or succession of men is to be trusted with it But says our Author there can be no Law where there is not a supreme Power and from thence very strongly concludes it must be in the King for otherwise there can be no Sovereign Majesty in him and he is but an equivocal King This might have bin of some force if Governments were establish'd and Laws made only to advance that Sovereign Majesty but nothing at all to the purpose if as he confesses the power which the Prince has be given for the good of the People and for the defence of every private man's Life Liberty Lands and Goods for that which is instituted cannot be abrogated for want of that which was never intended in the institution If the publick Safety be provided Liberty and Propriety secured Justice administred Virtue encouraged Vice suppressed and the true interest of the Nation advanced the ends of Government are accomplished and the highest must be contented with such a proportion of Glory and Majesty as is consistent with the publick since the Magistracy is not instituted nor any person placed in it for the increase of his Majesty but for the preservation of the whole People and the defence of the Liberty Life and Estate of every private man as our Author himself is forced to acknowledg But what is this Soveraign Majesty so inseparable from Royalty that one cannot subsist without the other Caligula placed it in a power of doing what he pleased to all men Nimrod Nabuchodonosor and others with an impious and barbarous insolence boasted of the greatness of their power They thought it a glorious Privilege to kill or spare whom they pleased But such Kings as by God's permission might have bin set up over his people were to have nothing of this They were not to multiply Gold Silver Wives or Horses they were not to govern by their own will but according to the Law from which they might not recede nor raise their hearts above their brethren Here were Kings without that unlimited Power which makes up the Soveraign Majesty that Flimer affirms to be so essential to Kings that without it they are only equivocal which proving nothing but the incurable perversness of his judgment the malice of his heart or malignity of his sate always to oppose reason and truth we are to esteem those to be Kings who are
most conducing to the good ends to which it was directed As Governments were instituted for the obtaining of Justice and as our Author says the preservation of Liberty we are not to seek what Government was the first but what best provides for the obtaining of Justice and preservation of Liberty For whatsoever the Institution be and how long soever it may have lasted 't is void if it thwarts or do not provide for the ends of its establishment If such a Law or Custom therefore as is not good in it self had in the beginning prevailed in all parts of the world which in relation to absolute or any kind of Monarchy is not true it ought to be abolished and if any man should shew himself wiser than others by proposing a Law or Government more beneficial to mankind than any that had bin formerly known providing better for Justice and Liberty than all others had done he would merit the highest veneration If any man ask who shall be Judg of that rectitude or pravity which either authorises or destroys a Law I answer that as this consists not in formalities and niceties but in evident and substantial truths there is no need of any other Tribunal than that of common sense and the light of nature to determine the matter and he that travels through France Italy Turky Germany and Switzerland without consulting Bartolus or Baldus will easily understand whether the Countries that are under the Kings of France and Spain the Pope and the Great Turk or such as are under the care of a well-regulated Magistracy do best enjoy the benefits of Justice and Liberty 'T is as easily determined whether the Grecians when Athens and Thebes flourished were more free than the Medes whether Justice was better administred by Agathocles Dionysius and Phalaris than by the legal Kings and regular Magistrates of Sparta or whether more care was taken that Justice and Liberty might be preserved by Tiberius Caligula Claudius Nero and Vitellius than by the Senate and People of Rome whilst the Laws were more powerful than the commands of men The like may be said of particular Laws as those of Nabuchodonosor and Caligula for worshipping their Statues our Acts of Parliament against Hereticks and Lollards with the Statutes and Orders of the Inqusition which is called the Holy Office And if that only be a Law which is Sanctio recta jubens honesta prohibens contraria the meanest understanding if free from passion may certainly know that such as these cannot be Laws by what Authority soever they were enacted and that the use of them and others like to them ought to be abolished for their turpitude and iniquity Infinite examples of the like nature might be alledged as well concerning divine as human things And if there be any Laws which are evil there cannot be an incontestable rectitude in all and if not in all it concerns us to examine where it is to be sound Laws and Constitutions ought to be weighed and whilst all due reverence is paid to such as are good every Nation may not only retain in it self a power of changing or abolishing all such as are not so but ought to exercise that Power according to the best of their understanding and in the place of what was either at first mistaken or afterwards corrupted to constitute that which is most conducing to the establishment of Justice and Liberty But such is the condition of mankind that nothing can be so perfectly framed as not to give some testimony of human imbecility and frequently to stand in need of reparations and amendments Many things are unknown to the wisest and the best men can never wholly devest themselves of passions and affections By this means the best and wisest are sometimes led into Error and stand in need of Successors like to themselves who may find remedies for the faults they have committed and nothing can or ought to be permanent but that which is perfect No natural body was ever so well temper'd and organiz'd as not to be subject to diseases wounds or other accidents and to need medicines and other occasional helps as well as nourishment and exercise and he who under the name of Innovation would deprive Nations of the like dos as much as lies in him condemn them all to perish by the defects of their own foundations Some men observing this have proposed a necessity of reducing every State once in an age or two to the integrity of its first principle but they ought to have examined whether that principle be good or evil or so good that nothing can be added to it which none ever was and this being so those who will admit of no change would render Errors perpetual and depriving Mankind of the benefits of Wisdom Industry Experience and the right use of Reason oblige all to continue in the miserable barbarity of their Ancestors which sutes better with the name of a Wolf than that of a Man Those who are of better understanding weigh all things and often find reason to abrogate that which their fathers according to the measure of the knowledge they had or the state of things among them had rightly instituted or to restore that which they had abrogated and there can be no greater mark of a most brutish stupidity than for men to continue in an evil way because their fathers had brought them into it But if we ought not too strictly to adhere to our own Constitutions those of other Nations are less to be regarded by us for the Laws that may be good for one People are not for all and that which agrees with the manners of one Age is utterly abhorrent from those of another It were absurd to think of restoring the Laws of Lycurgus to the present inhabitants of Peloponesus who are accustomed to the most abject slavery It may easily be imagined how the Romans Sabins and Latins now under the tyranny of the Pope would relish such a discipline as flourished among them after the expulsion of the Tarquins and it had bin no less preposterous to give a liberty to the Parthians of governing themselves or for them to assume it than to impose an absolute Monarch upon the German Nation Titus Livius having observed this says that if a popular Government had bin set up in Rome immediately upon the building of the City and if that fierce people which was composed of unruly shepherds herdsmen sugitive slaves and out-law'd persons who could not suffer the Governments under which they were born had come to be incited by turbulent Orators they would have brought all into consusion whereas that boisterous humour being gradually temper'd by discipline under Romulus or taught to vent its sury against foreign enemies and soften'd by the peaceable reign of Numa a new Race grew up which being all of one blood contracted a love to their Country and became capable of Liberty which the madness of their last King and the lewdness of
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 Life than by the performance of his Oath and accomplishing the ends of his election They neither took him to be the giver or interpreter of their Laws and would not suffer him to violate those of their Ancestors In this way they always continued and tho perhaps they might want skill to fall upon the surest and easiest means of restraining the Lusts of Princes yet they maintained their rights so well that the wisest Princes seldom invaded them and the success of those who were so foolish to attempt it was such as may justly deter others from following their unprosperous Examples We have had no King since William the First more hardy than Henry the 8th and yet he so intirely acknowledged the power of making changing and repealing Laws to be in the Parliament as never to attempt any extraordinary thing otherwise than by their Authority It was not he but the Parliament that dissolved the Abbies He did not take their Lands to himself but receiv'd what the Parliament thought fit to give him He did not reject the Supremacy of the Pope nor assume any other power in spiritual matters than the Parliament conferred upon him The intricacies of his Marriages and the legitimation of his Children was settled by the same Power At least one of his Daughters could not inherit the Crown upon any other Title they who gave him a power to dispose of the Crown by will might have given it to his Groom and he was too haughty to ask it from them if he had it in himself which he must have had if the Laws and Judicatures had bin in his hand This is farther evidenced by what passed in the Tower between Sir Thomas Moor and Rich the King's Sollicitor who asking if it would not be treason to oppose Richard Rich if the Parliament should make him King Moor said that was Casus levis for the Parliament could make and depose Kings as they thought fit and then as more conducing to his own case asked Rich if the Parliament should enact that God should not be God whether such as did not submit should be esteemed Traitors 'T is evident that a man of the acuteness and learning of Sir Tho. Moor would not have made use of such an Argument to avoid the necessity of obeying what the Parliament had ordained by shewing his Case to be of a nature far above the power of man unless it had bin confessed by all men that the Parliament could do whatsoever lay within the reach of human power This may be enough to prove that the King cannot have a power over the Law and if he has it not the power of interpreting Laws is absurdly attributed to him since it is founded upon a supposition that he can make them which is false SECT XXVII Magna Charta was not the Original but a Declaration of the English Liberties The King's Power is not restrained but created by that and other Laws and the Nation that made them can only correct the defects of them I Agree with our Author that Magna Charta was not made to restrain the absolute Authority for no such thing was in being or pretended the folly of such visions seeming to have bin reserved to compleat the misfortunes and ignominy of our age but it was to assert the native and original Liberties of our Nation by the confession of the King then being that neither he nor his Successors should any way encroach upon them and it cannot be said that the power of Kings is diminished by that or any other Law for as they are Kings only by Law the Law may confer power upon one in particular or upon him and his Successors but can take nothing from them because they have nothing except what is given to them But as that which the Law gives is given by those who make the Law they only are capable of judging whether he to whom they gave it do well or ill imploy that power and consequently are only fit to correct the defects that may be found in it Therefore tho I should confess that faults may be found in many Statutes and that the whole body of them is greatly defective it will not follow that the compendious way of referring all to the will of the King should be taken But what defects soever may be in our Law the disease is not so great to require extreme remedies and we may hope for a cheaper cure Our Law may possibly have given away too much from the People and provided only insufficient defences of our Liberties against the encroachments of bad Princes but none who are not in judgment and honesty like to our Author can propose sor a remedy to the evils that proceed from the error of giving too much the resignation of all the rest to them Whatever he says 't is evident that he knows this to be true when tho he denies that the power of Kings can be restrained by Acts of Parliament he endeavours to take advantage of such clauses as were either fraudulently inserted by the King's Officers who till the days of Henry the fifth for the most part had the penning of the publick Acts or through negligence did not fully explain the intentions of the Legislators which would be to no purpose if all were put into the hands of the King by a general Law from God that no human power could diminish or enlarge and as his last shift would obliquely put all into the power of the King by giving him a right of interpreting the Law and judging such cases as are not clearly decided which would be equally impertinent if he had openly and plainly a right of determining all things according to his will But what defects soever may be in any Statutes no great inconveniences could probably ensue if that for annual Parliaments was observed as of right it ought to be Nothing is more unlikely than that a great Assembly of eminent and chosen men should make a Law evidently destructive to their own designs and no mischief that might emerge upon the discovery of a mistake could be so extreme that the cure might not be deferr'd till the meeting of the Parliament or at least forty days in which time the King may call one if that which the Law has fixed seem to be too long If he fail of this he performs not his trust and he that would reward such a breach of it with a vast and uncontrolable power may be justly thought equal in madness to our Author who by forbidding us to examine the titles of Kings and enjoyning an intire veneration of the power by what means soever obtained encourages the worst of men to murder the best of Princes with an assurance that if they prosper they shall enjoy all the honors and advantages that this World can afford Princes are not much more beholden to him for the haughty language he puts into their mouths it having bin observed that the worst are always most
of grace and favour from that King but adds that it had bin more for the honour of Parliaments if a King whose title to the Crown had bin better had bin the Author of the form of it In answer to the first I do not think my self obliged to insist upon the name or form of the Parliament for the Authority of a Magistracy proceeds not from the number of years that it has continued but the rectitude of the institution and the Authority of those that instituted it The power of Saul David and Jeroboam was the same with that which belonged to the last Kings of Israel and Judah The Authority of the Roman Consuls Dictators Pretors and Tribuns was the same as soon as it was established was as legal and just as that of the Kings of Denmark which is said to have continued above three thousand years For as time can make nothing lawful or just that is not so of it self tho men are unwilling to change that which has pleased their Ancestors unless they discover great inconveniences in it that which a People dos rightly establish for their own good is of as much force the first day as continuance can ever give to it and therefore in matters of the greatest importance wise and good men do not so much inquire what has bin as what is good and ought to be for that which of it self is evil by continuance is made worse and upon the first opportunity is justly to be abolished But if that Liberty in which God created man can receive any strength from continuance and the rights of Englishmen can be render'd more unquestionable by prescription I say that the Nations whose rights we inherit have ever enjoy'd the Liberties we claim and always exercised them in governing themselves popularly or by such Representatives as have bin instituted by themselves from the time they were first known in the world The Britans and Saxons lay so long hid in the obscurity that accompanies barbarism that 't is in vain to seek what was done by either in any writers more antient than Cesar and Tacitus The first describes the Britans to have bin a fierce People zealous for Liberty and so obstinately valiant in the defence of it that tho they wanted skill and were overpower'd by the Romans their Country could no otherwise be subdued than by the slaughter of all the inhabitants that were able to bear arms He calls them a free People in as much as they were not like the Gauls governed by Laws made by the great men but by the People In his time they chose Cassivellaunus and afterwards Caractatus Arviragus Galgacus and others to command them in their wars but they retain'd the Government in themselves That no force might be put upon them they met arm'd in their general Assemblies and tho the smaller matters were left to the determination of the chief men chosen by themselves for that purpose they reserved the most important amongst which the chusing of those men was one to themselves When the Romans had brought them low they set up certain Kings to govern such as were within their Territories but those who defended themselves by the natural strength of their situation or retired into the North or the Islands were still governed by their own Customs and were never acquainted with domestick or foreign slavery The Saxons from whom we chiesly derive our Original and Manners were no less lovers of Liberty and better understood the ways of defending it They were certainly the most powerful and valiant people of Germany and what the Germans performed under Ariovistus Arminius and Maroboduus shews both their force and their temper If ever fear enter'd into the heart os Cesar it seems to have bin when he was to deal with Ariovistus The advantages that the brave Germanicus obtained against Arminius were at least thought equal to the greatest victories that had bin gain'd by any Roman Captain because these Nations fought not for riches or any instruments of Luxury and Pleasure which they despised but for Liberty This was the principle in which they lived as appears by their words and actions so that Arminius when his brother Flavius who served the Romans boasted of the increase of his pay and the marks of honour he had received in scorn call'd them the rewards of the vilest servitude but when he himself endeavour'd to usurp a power over the liberty of his Country which he had so bravely defended he was killed by those he would have oppress'd Tacitus farther describing the nature of the Germans shews that the Romans had run greater hazards from them than from the Samnites Carthaginians and Parthians and attributes their bravery to the Liberty they enjoyed for they are says he neither exhausted by Tributes nor vexed by Publicans and lest this Liberty should be violated the chief men consult about things of lesser moment but the most important matters are determined by all Whoever would know the opinion of that wise Author concerning the German Liberty may read his excellent Treatise concerning their Manners and Customs but I presume this may be enough to prove that they lived free under such Magistrates as they chose regulated by such Laws as they made and retained the principal powers of the Government in their general or particular Councils Their Kings and Princes had no other power than was conferred upon them by these Assemblies who having all in themselves could receive nothing from them who had nothing to give 'T is as easily proved that the Saxons or Angli from whom we descend were eminent among those whose power virtue and love to Liberty the abovementioned Historian so highly extols in as much as besides what he says in general of the Saxons he names the Angli describes their habitation near the Elb and their religious worship of the Goddess Erthum or the Earth celebrated in an Island lying in the mouth of that River thought to be Heyligland in resemblance of which a small one lying over against Berwick is called Holy Island If they were free in their own Country they must be so when they came hither The manner of their coming shews they were more likely to impose than submit to slavery and if they had not the name of Parliament it was because they did not speak French or not being yet joined with the Normans they had not thought fit to put their Affairs into that method but having the root of Power and Liberty in themselves they could not but have a right of establishing the one in such a form as best pleased them for the preservation of the other This being as I suppose undeniable it imports not whether the Assemblies in which the supreme Power of each Nation did reside were frequent or rare composed of many or few persons sitting altogether in one place or in more what name they had or whether every free man did meet and vote in his own
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
beyond or contrary to the true meaning of it private men who swear obedience ad legem swear no obedience extra or contra Legem whatsoever they promise or swear can detract nothing from the publick Liberty which the Law principally intends to preserve Tho many of them may be obliged in their several Stations and Capacities to render peculiar services to a Prince the People continue as free as the internal thoughts of a man and cannot but have a right to preserve their Liberty or avenge the violation If matters are well examined perhaps not many Magistrates can pretend to much upon the title of merit most especially if they or their progenitors have continued long in Office The conveniences annexed to the exercise of the Sovereign power may be thought sufficient to pay such scores as they grow due even to the best and as things of that nature are handled I think it will hardly be found that all Princes can pretend to an irresistible power upon the account of beneficence to their People When the family of Medices came to be masters of Tuscany that Country was without dispute in men mony and arms one of the most flourishing Provinces in the World as appears by Macchiavel's account and the relation of what happened between Charles the eighth and the Magistrates of Florence which I have mentioned already from Guicciardin Now whoever shall consider the strength of that Country in those days together with what it might have bin in the space of a hundred and forty years in which they have had no war nor any other plague than the extortion fraud rapin and cruelty of their Princes and compare it with their present desolate wretched and contemptible condition may if he please think that much veneration is due to the Princes that govern them but will never make any man believe that their Title can be grounded upon beneficence The like may be said of the Duke of Savoy who pretending upon I know not what account that every Peasant in the Dutchy ought to pay him two Crowns every half year did in 1662 subtilly find our that in every year there were thirteen halves so that a poor man who had nothing but what he gained by hard labour was through his fatherly Care and Beneficence forced to pay six and twenty Crowns to his Royal Highness to be employ'd in his discreet and virtuous pleasures at Turin The condition of the Seventeen Provinces of the Netherlands and even of Spain it self when they fell to the house of Austria was of the same nature and I will confess as much as can be required if any other marks of their Government do remain than such as are manifest evidences of their Pride Avarice Luxury and Cruelty France in outward appearance makes a better show but nothing in this world is more miserable than that people under the fatherly care of their triumphant Monarch The best of their condition is like Asses and Mastiff-dogs to work and fight to be oppressed and kill'd for him and those among them who have any understanding well know that their industry courage and good success is not only unprofitable but destructive to them and that by increasing the power of their Master they add weight to their own Chains And if any Prince or succession of Princes have made a more modest use of their Power or more faithfully discharged the trust reposed in them it must be imputed peculiarly to them as a testimony of their personal Virtue and can have no effect upon others The Rights therefore of Kings are not grounded upon Conquest the Liberties of Nations do not arise from the Grants of their Princes the Oath of Allegiance binds no privat man to more than the Law directs and has no influence upon the whole Body of every Nation Many Princes are known to their Subjects only by the injuries losses and mischiefs brought upon them such as are good and just ought to be rewarded for their personal Virtue but can confer no right upon those who no way resemble them and whoever pretends to that merit must prove it by his Actions Rebellion being nothing but a renewed War can never be against a Government that was not established by War and of it self is neither good nor evil more than any other War but is just or unjust according to the cause or manner of it Besides that Rebellion which by Samuel is compar'd to Witchcraft is not of private men or a People against the Prince but of the Prince against God The Israelites are often said to have rebelled against the Law Word or Command of God but tho they frequently opposed their Kings I do not find Rebellion imputed to them on that account nor any ill character put upon such actions We are told also of some Kings who had bin subdued and afterwards rebelled against Chedorlaomer and other Kings but their cause is not blamed and we have some reason to believe it good because Abraham took part with those who had rebelled However it can be of no prejudice to the cause I defend for tho it were true that those subdued Kings could not justly rise against the person who had subdued them or that generally no King being once vanquished could have a right of Rebellion against his Conqueror it could have no relation to the actions of a people vindicating their own Laws and Liberties against a Prince who violates them for that War which never was can never be renewed And if it be true in any case that hands and swords are given to men that they only may be Slaves who have no courage it must be when Liberty is overthrown by those who of all men ought with the utmost industry and vigour to have defended it That this should be known is not only necessary for the safety of Nations but advantagious to such Kings as are wise and good They who know the frailty of human Nature will always distrust their own and desiring only to do what they ought will be glad to be restrain'd from that which they ought not to do Being taught by reason and experience that Nations delight in the Peace and Justice of a good Government they will never fear a general Insurrection whilst they take care it be rightly administred and finding themselves by this means to be safe will never be unwilling that their Children or Successors should be obliged to tread in the same steps If it be said that this may sometimes cause disorders I acknowledg it but no human condition being perfect such a one is to be chosen which carries with it the most tolerable inconveniences And it being much better that the irregularities and excesses of a Prince should be restrained or suppressed than that whole Nations should perish by them those Constitutions that make the best provision against the greatest evils are most to be commended If Governments were instituted to gratify the lusts of one man those could not be good that
Towns and Provinces upon the most eminent men in them And whilst those Kings were exercised in almost perpetual Wars and placed their glory in the greatness of the actions they atchieved by the power and valour of their people it was their interest always to chuse such as seemed best to deserve that honour It was not to be imagined that through the weakness of some and malice of others those dignities should by degrees be turned into empty titles and become the rewards of the greatest crimes and the vilest services or that the noblest of their Descendents for want of them should be brought under the name of Commoners and deprived of all privileges except such as were common to them with their Grooms Such a stupendous change being in process of time insensibly introduced the foundations of that Government which they had established were removed and the superstructure overthrown The balance by which it subsisted was broken and 't is as impossible to restore it as for most of those who at this day go under the name of Noblemen to perform the duties required from the antient Nobility of England And tho there were a charm in the name and those who have it should be immediately filled with a spirit like to that which animated our Ancestors and endeavour to deserve the Honors they possess by such Services to the Country as they ought to have perform'd before they had them they would not be able to accomplish it They have neither the interest nor the estates required for so great a work Those who have estates at a rack Rent have no dependents Their Tenants when they have paid what is agreed owe them nothing and knowing they shall be turn'd out of their Tenements as soon as any other will give a little more they look upon their Lords as men who receive more from them than they confer upon them This dependence being lost the Lords have only more mony to spend or lay up than others but no command of men and can therefore neither protect the weak nor curb the insolent By this means all things have bin brought into the hands of the King and the Commoners and there is nothing left to cement them and to maintain the union The perpetual jarrings we hear every day the division of the Nation into such factions as threaten us with ruin and all the disorders that we see or fear are the effects of this rupture These things are not to be imputed to our original Constitutions but to those who have subverted them And if they who by corrupting changing enervating and annihilating the Nobility which was the principal support of the antient regular Monarchy have driven those who are truly Noblemen into the same interest and name with the Commons and by that means increased a party which never was and I think never can be united to the Court they are to answer for the Consequences and if they perish their destruction is from themselves The inconveniences therefore proceed not from the institution but from the innovation The Law was plain but it has bin industriously rendred perplex They who were to have upheld it are overthrown That which might have bin easily performed when the people was armed and had a great strong virtuous and powerful Nobility to lead them is made difficult now they are disarmed and that Nobility abolished Our Ancestors may evidently appear not only to have intended well but to have taken a right course to accomplish what they intended This had effect as long as the cause continued and the only fault that can be ascribed to that which they established is that it has not proved to be perpetual which is no more than may be justly said of the best human Constitutions that ever have bin in the world If we will be just to our Ancestors it will become us in our time rather to pursue what we know they intended and by new Constitutions to repair the breaches made upon the old than to accuse them of the defects that will for ever attend the Actions of men Taking our Affairs at the worst we shall soon find that if we have the same spirit they had we may easily restore our Nation to its antient liberty dignity and happiness and if we do not the fault is owing to our selves and not to any want of virtue and wisdom in them SECT XXXVIII The Power of calling and dissolving Parliaments is not simply in the King The variety of Customs in chusing Parliament men and the Errors a people may commit neither prove that Kings are or ought to be Absolute THE original of magistratical Power the intention of our Ancestors in its creation and the ways prescribed for the direction and limitation of it may I presume sufficiently appear by what has bin said But because our Author taking hold of every twig pretends that Kings may call and dissolve Parliaments at their pleasure and from thence infers the Power to be wholly in them alledges the various customs in several parts of this Nation used in the elections of Parliament men to proceed from the King's will and because a people may commit Errors thinks all Power ought to be put into the hands of the King I answer 1. That the Power of calling and dissolving Parliaments is not simply in Kings They may call Parliaments if there be occasion at times when the Law dos not exact it they are placed as Sentinels and ought vigilantly to observe the motions of the Enemy and give notice of his approach But if the Sentinel fall asleep neglect his duty or maliciously endeavour to betray the City those who are concern'd may make use of all other means to know their danger and to preserve themselves The ignorance incapacity negligence or luxury of a King is a great calamity to a Nation and his malice is worse but not an irreparable ruin Remedies may be and often have bin found against the worst of their Vices The last French Kings of the Races of Meroveus and Pepin brought many mischiefs upon the Kingdom but the destruction was prevented Edward and Richard the Seconds of England were not unlike them and we know by what means the Nation was preserved The question was not who had the Right or who ought to call Parliaments but how the Commonwealth might be saved from ruin The Consuls or other chief Magistrates in Rome had certainly a right of assembling and dismissing the Senat But when Hannibal was at the Gates or any other imminent danger threatned them with destruction if that Magistrate had bin drunk mad or gained by the Enemy no wise man can think that Formalities were to have bin observed In such cases every man is a Magistrate and he who best knows the danger and the means of preventing it has a right of calling the Senat or People to an Assembly The people would and certainly ought to follow him as they did Brutus and Valerius against Tarquin or Horatius and
and safe 2. That 't is good as well for the Magistrate as the People so to constitute the Government that the Remedies may be easy and safe 3. That how dangerous and difficult soever they may be through the defects of the first Constitution they must be tried To the first 'T is most evident that in well-regulated Governments these Remedies have bin found to be easy and safe The Kings of Sparta were not suffer'd in the least to deviate from the rule of the Law And Theopompus one of those Kings in whose time the Ephori were created and the regal Power much restrained doubted not to affirm that it was by that means become more lasting and more secure Pausanias had not the name of King but commanded in the War against Xerxes with more than regal Power nevertheless being grown insolent he was without any trouble to that State banished and afterwards put to death Leontidas Father of Cleomenes was in the like manner banished The second Agis was most unjustly put to death by the Ephori for he was a brave and a good Prince but there was neither danger nor difficulty in the action Many of the Roman Magistrates after the expulsion of the Kings seem to have been desirous to extend their Power beyond the bounds of the Law and perhaps some others as well as the Decemviri may have designed an absolute Tyranny but the first were restrained and the others without much difficulty suppressed Nay even the Kings were so well kept in order that no man ever pretended to the Crown unless he were chosen nor made any other use of his Power than the Law permitted except the last Tarquin who by his insolence avarice and cruelty brought ruin upon himself and his family I have already mentioned one or two Dukes of Venice who were not less ambitious but their crimes returned upon their own heads and they perished without any other danger to the State than what had passed before their Treasons were discovered Infinite examples of the like nature may be alledged and if matters have not at all times and in all places succeeded in the same manner it has bin because the same courses were not every where taken for all things do so far follow their causes that being order'd in the same manner they will always produce the same effects 2. To the second Such a regulation of the magistratical Power is not at all grievous to a good Magistrate He who never desires to do any thing but what he ought cannot desire a Power of doing what he ought not nor be troubled to find he cannot do that which he would not do if he could This inability is also advantageous to those who are evil or unwise that since they cannot govern themselves a Law may be imposed upon them lest by following their own irregular will they bring destruction upon themselves their families and people as many have done If Apollo in the Fable had not bin too indulgent to Phaeton in granting his ill-conceiv'd request the furious Youth had not brought a necessity upon Jupiter either of destroying him or suffering the world to be destroy'd by him Besides good and wise men know the weight of Sovereign Power and misdoubt their own strength Sacred and human Histories furnish us with many examples of those who have feared the lustre of a Crown Men that find in themselves no delight in doing mischief know not what thoughts may insinuate into their minds when they are raised too much above their Sphere They who were able to bear adversity have bin precipitated into ruin by prosperity When the Prophet told Hazael the Villanies he would commit he answer'd Is thy Servant a dog that I should do these things but yet he did them I know not where to find an example of a man more excellently qualified than Alexander of Macedon but he fell under the weight of his own fortune and grew to exceed those in vice whom he had conquer'd by his virtue The nature of man can hardly suffer such violent changes without being disorder'd by them and every one ought to enter into a just diffidence of himself and fear the temptations that have destroy'd so many If any man be so happily born so carefully educated so established in virtue that no storm can shake him nor any poison corrupt him yet he will consider he is mortal and knowing no more than Solomon whether his Son shall be a wise man or a fool he will always fear to take upon him a power which must prove a most pestilent evil both to the person that has it and to those that are under it as soon as it shall fall into the hands of one who either knows not how to use it or may be easily drawn to abuse it Supreme Magistrates always walk in obscure and flippery places but when they are advanced so high that no one is near enough to support direct or restrain them their fall is inevitable and mortal And those Nations that have wanted the prudence dence rightly to balance the powers of their Magistrates have bin frequently obliged to have recourse to the most violent remedies and with much difficulty danger and blood to punish the crimes which they might have prevented On the other side such as have bin more wise in the constitution of their Governments have always had regard to the frailty of human nature and the corruption reigning in the hearts of men and being less liberal of the power over their lives and liberties have reserved to themselves so much as might keep their Magistrates within the limits of the Law and oblige them to perform the ends of their institution And as the Law which denounces severe penalties for crimes is indeed merciful both to ill men who are by that means deterred from committing them and to the good who otherwise would be destroy'd so those Nations that have kept the reins in their hands have by the same act provided as well for the safety of their Princes as for their own They who know the Law is well defended seldom attempt to subvert it they are not easily tempted to run into excesses when such bounds are set as may not safely be transgressed and whilst they are by this means render'd more moderate in the exercise of their Power the people is exempted from the odious necessity of suffering all manner of indignities and miseries or by their destruction to prevent or avenge them 3. To the third If these rules have not bin well observed in the first constitution or from the changes of times corruption of manners insensible encroachments or violent usurpations of Princes have bin render'd ineffectual and the people exposed to all the calamities that may be brought upon them by the weakness vices and malice of the Prince or those who govern him I confess the remedies are more difficult and dangerous but even in those cases they must be tried Nothing can be fear'd that is worse
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
Empire If the disputes between Durstus Evenus the third Dardannus and other Kings of Scotland with the Nobility and People might have bin determined by themselves they had escaped the punishments they suffer'd and ruined the Nation as they designed Other methods were taken they perished by their madness better Princes were brought into their plaees and their Successors were by their example admonished to avoid the ways that had proved fatal to them If Edward the second of England with Gaveston and the Spencers Richard the second with Tresilian and Vere had bin permitted to be the Judges of their own cases they who had murdered the best of the Nobility would have pursued their designs to the destruction of such as remained the enslaving of the Nation the subversion of the Constitution and the establishment of a mere Tyranny in the place of a mixed Monarchy But our Ancestors took better measures They who had felt the smart of the vices and follies of their Princes knew what remedies were most fit to be applied as well as the best time of applying them They found the effects of extreme corruption in Government to be so desperately pernicious that Nations must necessarily perish unless it be corrected and the State reduced to its first principle or altered Which being the case it was as easy for them to judg whether the Governor who had introduced that corruption should be brought to order removed if he would not be reclaimed or whether he should be suffer'd to ruin them and their posterity as it is for me to judg whether I should put away my Servant if I knew he intended to poison or murder me and had a certain facility of accomplishing his design or whether I should continue him in my service till he had performed it Nay the matter is so much the more plain on the side of the Nation as the disproportion of merit between a whole people and one or a few men entrusted with the power of governing them is greater than between a privat man and his servant This is so fully confirmed by the general consent of mankind that we know no Government that has not frequently either bin altered in form or reduced to its original purity by changing the families or persons who abused the power with which they had bin entrusted Those who have wanted wisdom and virtue rightly and seasonably to perform this have been soon destroy'd like the Goths in Spain who by omitting to curb the fury of Witza and Rodrigo in time became a prey to the Moors Their Kingdom by this means destroy'd was never restored and the remainder of that Nation joining with the Spaniards whom they had kept in subjection for three or four Ages could not in less than eight hundred years expel those enemies they might have kept out only by removing two base and vitious Kings Such Nations as have bin so corrupted that when they have applied themselves to seek remedies to the evils they suffered by wicked Magistrates could not fall upon such as were proportionable to the disease have only vented their Passions in destroying the immediate instruments of their oppression or for a while delay'd their utter ruin But the root still remaining it soon produced the same poisonous fruit and either quite destroy'd or made them languish in perpetual misery The Roman Empire was the most eminent example of the first many of the monsters that had tyrannized over them were killed but the greatest advantage gained by their death was a respit from ruin and the Government which ought to have bin established by good Laws depending only upon the virtue of one man his Life proved to be no more than a lucid interval and at his death they relapsed into the depth of Infamy and Misery and in this condition they continued till that Empire was totally subverted All the Kingdoms of the Arabians Medes Persians Moors and others of the East are of the other sort Common sense instructs them that barbarous pride cruelty and madness grown to extremity cannot be born but they have no other way than to kill the Tyrant and to do the like to his Successor if he fall into the same crimes Wanting that wisdom and valour which is requir'd for the institution of a good Government they languish in perpetual slavery and propose to themselves nothing better than to live under a gentle Master which is but a precarious lise and little to be valued by men of bravery and spirit But those Nations that are more generous who set a higher value upon Liberty and better understand the ways of preserving it think it a small matter to destroy a Tyrant unless they can also destroy the Tyranny They endeavour to do the work throughly either by changing the Government intirely or reforming it according to the first institution and making such good Laws as may preserve its integrity when reformed This has bin so frequent in all the Nations both antient and modern with whose actions we are best acquainted as appears by the foregoing examples and many others that might be alledged if the case were not clear that there is not one of them which will not furnish us with many instances and no one Magistracy now in being which dos not owe its original to some Judgment of this nature So that they must either derive their right from such actions or confess they have none at all and leave the Nations to their original liberty of setting up those Magistracies which best please themselves without any restriction or obligation to regard one person or family more than another SECT XLII The Person that wears the Crown cannot determine the Affairs which the Law refers to the King OUR Author with the rest of the vulgar seems to have bin led into gross errors by the form of Writs summoning persons to appear before the King The common stile used in the trial of Delinquents the name of the King's Witnesses given to those who accuse them the Verdicts brought in by Juries coram domino Rege and the prosecution made in the King's name seem to have caused this And they who understand not these Phrases render the Law a heap of the most gross absurdities and the King an Enemy to every one of his Subjects when he ought to be a Father to them all since without any particular consideration or examination of what any witness deposes in a Court of Justice tending to the death confiscation or other punishment of any man he is called the King's Witness whether he speak the truth or a lie and on that account favour'd 'T is not necessary to allege many instances in a case that is so plain but it may not be amiss to insert two or three of the most important reasons to prove my assertion 1. If the Law did intend that he or she who wears the Crown should in his or her person judg all causes and determine the most difficult questions it must like our
latter Kings hath bin so gracious as to allow always of the intire Bill as it passed both Houses He judiciously observes when our Kings began to be gracious and we to be free That King excepting the persecution for Religion in his time which is rather to be imputed to the ignorance of that age than to any evil in his own nature governed well and as all Princes who have bin virtuous and brave have always desired to preserve their Subjects Liberty which they knew to be the mother and nurse of their Valour fitting them for great and generous Enterprizes his care was to please them and to raise their Spirits But about the same time those detestable Arts by which the mixed Monarchies in this part of the world have bin every where terribly shaken and in many places totally overthrown began to be practised Charles the seventh of France under pretence of carrying on a War against him and his Son took upon him to raise Mony by his own Authority and we know how well that method has bin pursued The mischievous sagacity of his Son Lewis the 11th which is now called King-Craft was wholly exerted in the subversion of the Laws of France and the Nobility that supported them His Successors except only Lewis the 12th followed his example and in other Nations Ferdinand of Arragon James the third of Scotland and Henry the seventh of England were thought to imitate him the most Tho we have little reason to commend all the Princes that preceded Henry the fifth yet I am inclined to date the general impairing of our Government from the death of that King and his valiant Brothers His weak Son became a prey to a furious French woman who brought the Maxims of her own Country into ours and advanced the worst of villains to govern according to them These measures were pursued by Edward the fourth whose wants contracted by prodigality and debauchery were to be supplied by fraud and rapine The ambition cruelty and persidiousness of Richard the third the covetousness and malicious subtilty of Henry the seventh the violent lust rage and pride of Henry the 8th and the bigotted fury of Queen Mary instigated by the craft and malice of Spain perswaded me to believe that the English Liberty did not receive birth or growth from the favour and goodness of their gracious Princes But it seems all this is mistaken Henry the sixth was wise valiant and no way guided by his Wife Edward the sourth continent sober and contented with what the Nation gave him Richard the third mild gentle and faithful Henry the 7th sincere and satisfied with his own Henry the 8th humble temperate and just and Queen Mary a friend to our Country and Religion No less praises sure can be due to those who were so gracious to recede from their own right of picking what they pleased out of our Laws and to leave them intirely to us as they passed both Houses We are beholden to our Author for the discovery of these mysteries but tho he seems to have taken an Oath like that of the Gypsies when they enter into that virtuous Society never to speak one word of truth he is not so subtle in concealing his Lies All Kings were trusted with the publication of the Laws but all Kings did not falsify them Such as were not wicked and vicious or so weak as to be made subservient to the malice of their Ministers and Flatterers could never be drawn into the guilt of so infamous a cheat directly contrary to the Oath of their Coronation They swear to pass such Laws as the People chuse but if we will believe our Author they might have pick'd out whatever they pleased and falsly imposed upon the Nation as a Law made by the Lords and Commons that which they had modelled according to their own will and made to be different from or contrary to the intention of the Parliament The King's part in this fraud of which he boasts was little more than might have bin done by the Speaker or his Clerks They might have falfified an Act as well as the King tho they could not so well preserve themselves from punishment 'T is no wonder if for a while no stop was put to such an abominable Custom 'T was hard to think a King would be guilty of a fraud that were infamous in a Slave But that proved to be a small security when the worst of Slaves came to govern them Nevertheless 't is probable they proceeded cautioufly the first alterations were perhaps innocent or it may be for the best But when they had once found out the way they stuck at nothing that seemed for their purpose This was like the plague of Leprosy that could not be cured the house infected was to be demolished the poisonous plant must be torn up by the root the trust that had bin broken was to be abolished they who had perverted or frustrated the Law were no longer to be suffered to make the least alteration and that brave Prince readily joined with his People to extinguish the mischievous abuse that had bin introduced by some of his worthless Predecessors The worst and basest of them had continual disputes with their Parliaments and thought that whatever they could detract from the Liberty of the Nation would serve to advance their Prerogative They delighted in frauds and would have no other Ministers but such as would be the instruments of them Since their Word could not be made to pass for a Law they endeavoured to impose their own or their Servants inventions as Acts of Parliaments upon the deluded people and to make the best of them subservient to their corrupt Ends and pernicious Counsels This if it had continued might have overthrown all our Rights and deprived us of all that men can call good in the world But the Providence of God furnished our Ancestors with an opportunity of providing against so great so universal a mischief They had a wise and valiant Prince who scorned to encroach upon the Liberties of his Subjects and abhorred the detestable Arts by which they had bin impair'd He esteemed their courage strength and love to be his greatest advantage riches and glory He aimed at the conquest of France which was only to be effected by the bravery of a free and well-satisfied People Slaves will always be cowards and enemies to their Master By bringing his Subjects into that condition he must infallibly have ruined his own designs and made them unfit to fight either for him or themselves He desired not only that his People should be free during his time but that his Successors should not be able by oblique and fraudulent ways to enslave them If it be a reproach to us that Women have reigned over us 't is much more to the Princes that succeeded our Henry that none of them did so much imitate him in his Government as Queen Elizabeth She did not go about to mangle Acts
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
unless the whole body of the Nation for which they serve and who are equally concerned in their resolutions could be assembled This being impracticable the only punishment to which they are subject if they betray their trust is scorn infamy hatred and an assurance of being rejected when they shall again seek the same honor And tho this may seem a small matter to those who fear to do ill only from a sense of the pains inflicted yet it is very terrible to men of ingenuous spirits as they are supposed to be who are accounted fit to be entrusted with so great Powers But why should this be Liberty with a mischief if it were otherwise or how the liberty of particular Societies world be greater if they might do what they pleased than whilst they send others to act for them such wise men only as Filmer can tell us For as no man or number of men can give a Power which he or they have not the Achaians Etolians Latins Samnites and Tuscans who transacted all things relating to their Associations by Delegates and the Athenians Carthaginians and Romans who kept the power of the State in themselves were all equally free And in our days the United Provinces of the Netherlands the Switsers and Grisons who are of the first sort and the Venetians Genoeses and Luccheses who are of the other are so also All men that have any degree of common sense plainly see that the Liberty of those who act in their own persons and of those who send Delegates is perfectly the same and the exercise is and can only be changed by their consent But whatever the Law or Custom of England be in this point it cannot concern our question The general proposition concerning a Patriarchical Power cannot be proved by a single example If there be a general power every where forbidding Nations to give instructions to their Delegates they can do it no where If there be no such thing every people may do it unless they have deprived themselves of their right all being born under the same condition 'T is to no purpose to say that the Nations before mentioned had not Kings and therefore might act as they did For if the general Thesis be true they must have Kings and if it be not none are obliged to have them unless they think fit and the Kings they make are their Creatures But many of these Nations had either Kings or other Magistrates in power like to them The Provinces of the Netherlands had Dukes Earls or Marquesses Genoa and Venice have Dukes If any on account of the narrowness of their Territories have abstained from the name it dos not alter the case for our dispute is not concerning the name but the right If that one man who is in the principal Magistracy of every Nation must be reputed the Father of that people and has a Power which may not be limited by any Law it imports not what he is called But if in small Territories he may be limited by Laws he may be so also in the greatest The least of men is a man as well as a Giant And those in the West-Indies who have not above twenty or thirty Subjects able to bear Arms are Kings as well as Xerxes Every Nation may divide it self into small parcels as some have done by the same Law they have restrained or abolished their Kings joined to one another or taken their hazard of subsisting by themselves acted by delegation or retaining the Power in their own persons given finite or indefinite Powers reserved to themselves a power of punishing those who should depart from their duty or referred it to their General Assemblies And that Liberty for which we contend as the Gift of God and Nature remains equally to them all If men who delight in cavilling should say that great Kingdoms are not to be regulated by the Examples of small States I desire to know when it was that God ordained great Nations should be Slaves and deprived of all right to dispose matters relating to their Government whilst he left to such as had or should divide themselves into small parcels a right of making such Constitutions as were most convenient for them When this is resolved we ought to be informed what extent of territory is required to deserve the name of a great Kingdom Spain and France are esteemed great and yet the Deputies or Procuradores of the several parts of Castille did in the Cortez held at Madrid in the beginning of Charles the fifths reign excuse themselves from giving the supplies he desired because they had received no orders in that particular from the Towns that sent them and afterwards receiving express orders not to do it they gave his Majesty a flat denial The like was frequently done during the reigns of that great Prince and of his Son Philip the second And generally those Procuradores never granted any thing of importance to either of them without particular Orders from their Principals The same way was taken in France as long as there were any General Assemblies of Estates and if it do not still continue 't is because there are none For no man who understood the Affairs of that Kingdom did ever deny that the Deputies were obliged to follow the Orders of those who sent them And perhaps if men would examin by what means they came to be abolished they might find that the Cardinals de Richelieu and Mazarin with other Ministers who have accomplished that work were acted by some other principle than that of Justice or the establishment of the Laws of God and Nature In the General Assembly of Estates held at Blois in the time of Henry the third Bodin then Deputy for the third Estate of Vermandois by their particular Order proposed so many things as took up a great part of their time Other Deputies alledged no other reason for many things said and done by them highly contrary to the King's will than that they were commanded so to do by their superiors These General Assemblies being laid aside the same Custom is still used in the lesser Assemblies of Estates in Languedoc and Britany The Deputies cannot without the infamy of betraying their Trust and fear of punishment recede from the Orders given by their principals and yet we do not find that Liberty with a mischief is much more predominant in France than amongst us The same method is every day practised in the Diets of Germany The Princes and great Lords who have their places in their own right may do what they please but the Deputies of the Cities must follow such Orders as they receive The Histories of Denmark Sweden Poland and Bohemia testify the same thing and if this Liberty with a mischief do not still continue entire in all those places it has bin diminished by such means as sute better with the manners of Pirats than the Laws of God and Nature If England therefore do not still enjoy
the same we must have bin deprived of it either by such unjustifiable means or by our own consent But thanks be to God we know no People who have a better right to Liberty or have better defended it than our own Nation And if we do not degenerate from the Virtue of our Ancestors we may hope to transmit it intire to our Posterity We always may and often do give Instructions to our Delegates but the less we fetter them the more we manifest our own Rights for those who have only a limited Power must limit that which they give but he that can give an unlimited Power must necessarily have it in himself The great Treasurer Burleigh said the Parliament could do any thing but turn a Man into a Woman Sir Thomas Moor when Rich Sollicitor to K. Henry the 8 th asked him if the Parliament might not make R. Rich King said that was casus levis taking it for granted that they might make or unmake whom they pleased The first part of this which includes the other is asserted by the Statute of the 13th of Q. Elizabeth denouncing the most grievous punishments against all such as should dare to contradict it But if it be in the Parliament it must be in those who give to Parliament-men the powers by which they act for before they are chosen they have none and can never have any if those that send them had it not in themselves They cannot receive it from the Magistrate for that power which he has is derived from the same spring The power of making and unmaking him cannot be from himself for he that is not can do nothing and when he is made can have no other power than is conferred upon him by those that make him He who departs from his duty desires to avoid the punishment the power therefore of punishing him is not from himself It cannot be from the House of Peers as it is constituted for they act for themselves and are chosen by Kings and 't is absurd to think that Kings who generally abhor all restriction of their Power should give that to others by which they might be unmade If one or more Princes relying upon their own Virtue and Resolutions to do good had given such a Power against themselves as Trajan did when he commanded the Prefect to use the Sword for him if he governed well and against him if he governed ill it would soon have bin rescinded by their Successors If our Edward the first had made such a Law his lewd Son would have abolished it before he would have suffered himself to be imprisoned and deposed by it He would never have acknowledged his unworthiness to reign if he had bin tied to no other Law than his own will for he could not transgress that nor have owned the mercy of the Parliament in sparing his Life if they had acted only by a power which he had conferred upon them This Power must therefore be in those who act by a delegated Power and none can give it to their Delegates but they who have it in themselves The most certain testimony that can be given of their unlimited power is that they rely upon the wisdom and fidelity of their Deputies so as to lay no restrictions upon them they may do what they please if they take care ne quid detrimenti Respublica accipiat that the Commonwealth receive no detriment This is a Commission fit to be granted by wise and good men to those they chuse through an opinion that they are so also and that they cannot bring any prejudice upon the Nation that will not fall upon themselves and their posterity This is also fit to be received by those who seeking nothing but that which is just in it self and profitable to their Country cannot foresee what will be proposed when they are altogether much less resolve how to vote till they hear the reasons on both sides The Electors must necessarily be in the same ignorance and the Law which should oblige them to give particular orders to their Knights and Burgesses in relation to every vote would make the decision of the most important Affairs to depend upon the judgment of those who know nothing of the matters in question and by that means cast the Nation into the utmost danger of the most inextricable confusion This can never be the intention of that Law which is Sanctio recta and seeks only the good of those that live under it The foresight therefore of such a mischief can never impair the Liberties of the Nation but establish them SECT XLV The Legislative Power is always Arbitrary and not to be trusted in the hands of any who are not bound to obey the Laws they make IF it be objected that I am a defender of Arbitrary Powers I confess I cannot comprehend how any Society can be established or subsist without them for the establishment of Government is an arbitrary Act wholly depending upon the will of men The particular Forms and Constitutions the whole Series of the Magistracy together with the measure of Power given to every one and the rules by which they are to exercise their charge are so also Magna Charta which comprehends our antient Laws and all the subsequent Statutes were not sent from Heaven but made according to the will of men If no men could have a power of making Laws none could ever have bin made for all that are or have bin in the world except those given by God to the Israelites were made by them that is they have exercised an Arbitrary Power in making that to be Law which was not or annulling that which was The various Laws and Governments that are or have bin in several ages and places are the product of various opinions in those who had the power of making them This must necessarily be unless a general rule be set to all for the judgments of men will vary if they are left to their liberty and the variety that is found among them shews they are subject to no rule but that of their own reason by which they see what is fit to be embraced or avoided according to the several circumstances under which they live The Authority that judges of these circumstances is arbitrary and the Legislators shew themselves to be more or less wise and good as they do rightly or not rightly exercise this Power The difference therefore between good and ill Governments is not that those of one sort have an Arbitrary Power which the others have not for they all have it but that those which are well constituted place this Power so as it may be beneficial to the people and set such rules as are hardly to be transgressed whilst those of the other sort fail in one or both these points Some also through want of courage fortune or strength may have bin oppressed by the violence of Strangers or suffer'd a corrupt Party to rise up within themselves and by