Reflections upon the Opinions OF Some Modern Divines CONCERNING The Nature of Government Licens'd June 29. 1689. J. FRASER THE CONTENTS CHAP. I. COncerning the Original of Sovereign Power Page 1 CHAP. II. The different Opinions of Philosophers and Divines concerning this matter Page 7 CHAP. III. That Sovereigns do not receive their Power immediately from God Page 10 CHAP. IV. An Examination of the Arguments which are alledged for the Proof of this Opinion Page 13 CHAP. V. Whether the Power of Sovereigns be absolute and unlimited Page 19 CHAP. V. Concerning the Extent of the Power of Sovereigns Page 24 CHAP. VI. Concerning Non-resistance Page 28 CHAP. VII That the Scripture doth not assert the point of Non-resistance Page 31 CHAP. VIII Whether the States can deprive Sovereigns of their Authority when they abuse it Page 34 CHAP. IX Concerning Regal Dignity and the Rights belonging to it among the Jews Page 38 CHAP. X. Concerning the Royal Law in favour of the Roman Emperors Page 50 CHAP. XI That the States of the West and of the North never knew this Royal Law Page 56 CHAP. XII That the Power of the Emperors of the West is a limited Power Page 63 CHAP. XIII That the Power of the Kings of Poland is limited Page 66 CHAP. XIV That the Monarchy of France is not an absolute Empire but a limited Royalty Page 68 CHAP. XV. That the Royalty of England never had any other form than the rest of the Northern and Western States Page 79 CHAP. XVI An Answer to some Difficulties moved against this Truth Page 85 CHAP. XVII An Answer to the last Objection Page 91 CHAP. XVIII A Reflection on some Remarks made out in this Treatise Page 97 APPENDIX CONCILII TOLETANI IV. Canon LXXV Pag. 103 The 75. Canon of the Fourth Council of Toledo ibid. Capitula super quibus facta est Magna Charta Regis Johannis ex MS. Arch. Cantuar. Fol. 14. Quae etiam authenticè cum Sigillo extant in manibus Episc Salisburiensis 113 Diploma Regium sive Ordinationes JOHANNIS Regis Angliae queis statuit quid Nobiles quid Plebeii observare debeant ad pacem tranquillitatem Regni stabiliendam 121 THE PREFACE 'T IS a strange and almost incomprehensible thing that at this time there should be found so many discontented Persons among us when but a little while since the whole Body of Protestants appeared so unanimous viz. at the beginning of the miraculous Revolution Though it hath already retrieved the State from Ruine and will without doubt prove its Happiness it might easily be guess'd that those who had contributed to the overthrow of the Laws apprehending the Reward they had so justly deserved would make up a Body of Malecontents and that their Numbers would be considerable 'T is notorious also that in all times those who think they are not considered or treated according to the Justice of their Merit are ready to murmur against the Government and the Ambition that possesses them renders them every where a Race of discontented Persons But whatever difference of Principles there might be among Protestants the fear of their common danger having reunited them and made their Interests the same with those of the State and Religion which they saw equally expos'd to inevitable Ruine there seem'd but small ground to apprehend that as soon as the Fright was over there should still be found a Generation of Men whom their old Animosities and habitual Prejudices would engage in disaffection and murmuring against the Government And yet it is but too true that scarce did the State and Religion begin to breath again but immediately there appeared a Party who made it appear by their snarling that what fill'd the generality of Men with Joy and made them give Thanks to God afforded them very small Satisfaction I pretend not to tax the whole Body of the English Church It is well enough known that as their Settlement was furiously struck at by Popery triumphant and observing no kind of measures her principal Members as well as the generality of those that resort under her have and still do witness their Zeal for the Government which God has been pleased to establish among us I speak only of some certain Members of this Church whom the Court has long employed in overthrowing by their Maxims the Foundations of the Publick Liberty in order to a sure Establishment of Popery Those Disciples of L'Estrange the Pensioner and Drudge of a Popish Court no sooner perceived that what was like to happen upon James the Second's Desertion would extremely expose them as Men that had betrayed the Interests of their Religion and the Government by Maxims which they had maintained with so much boldness every where began to publisb their discontent and still endeavour to inspire the same into the People as founded upon pure Tenderness of Conscience It cannot be denied but that hitherto the Government has shewed an extraordinary lenity in reducing them to Reason whom Danger seemed to have made wiser The method and careful management which has been made use of to obviate whatsoever might afford them the least Jealousie or give them the least trouble is an evident Mark hereof But in fine since they continue in their Mistakes notwithstanding all this care and tenderness and that nothing will satisfie them what can be more prudently undertaken than to prevent the pernicious Effects which their Example and the Maxims wherewith they are leavened might produce in the minds of the People We have thi◠Satisfaction already that the Publick is well aware they know not themselves what they would be at for how free soever they may be to disperse their Murmurs and Disaffection yet probably there is scarce one among them that would have James II. recalled neither indeed would it be so difficult a thing for them to find him out in case their Consciences link'd them so closely to him as they would make us believe But we may have also another satisfaction in this Point which is That in examining their Maxims in good earnest we may make it appear That they know not themselves what they affirm and that the Opinions they have so long maintained concerning the Nature of Government in general and that of England in particular are properly and truly a Heresie in Matters of State. Let no Man wonder that I call this Opinion of some of the Clergy of England a Political or State-Heresie Their Opinions respect a Political Question truly such but these Gentlemen have been pleased to mould it into an Article of Faith forsooth of the Church of England and their aim was to make that pass for an Article of the Law which indeed was no better than a dangerous Error in Policy And truly all the Characters of Heresie so fitly suit these their Sentiments that it is a hard thing to resist the Temptation of giving them that Title These Assertions are a perfect Novelty in Policy as well as Divinity Some late
extrajudiciously notwithstanding he might have absolute knowledge of his Offence This laid down and there is nothing more evident it will be easie to determin how far the Obedience of Subjects is engaged in the various sorts of Government under which they resort As to those Governments or Powers which have no other Law but their own Will whether at first they were raised by way of Conquest which seems to reduce Subjects to the condition of Slaves or whether from lawful Governments they have by degrees degenerated into Tyranny by the Injustice of Sovereigns we ought naturally to distinguish between the use these Powers make of their Authority and their abusing of it by rendring their Authority unlawful and extending it beyond its just limits The Captain of a company of High-way-men that is a Father may exact of his Son the Obedience which a Child owes his Father but his quality of Captain of High-way-men does not give him any right to command his Son to rob or murther And so far is the Son from being obliged to obey such kind of Commands that he becomes Criminal by obeying them It is evident then That in these sorts of Governments as long as the Prince enacts Laws conformable to the fundamental Laws of the State and that he behaves himself as a Father of his Country there lies a necessity upon the People of obeying him and this necessity is founded upon their Relation to the Authority which is just and legal with respect to its Function and Exercise But we must judge otherwise when the Question is of unjust Laws which the Power enacts for the Oppression of his Subjects For then there seems no further necessity of obeying to lye upon the Subjects than what results from a desire of avoiding their own destruction which depends on the Pleasure of the Power that oppresseth them which cannot settle a lawful Right on Tyrants other than such as a Master may have over his Slave or Bondman according to the Laws of Servitude And as to Governments which are bounded by fundamental Laws it is apparent That the Powers having no Authority at all but according to the Laws whereby they are established their Subjects are set free from obeying them as soon as they transgress those Laws If a King who has no Power to make Laws will of his alone Authority undertake to publish any without the concurrence of those who share with him in the Legislative Power none of his Subjects are obliged to obey him If a King who has no right to lay any Taxes on his People undertake to charge them with Impositions the People are not obliged to pay ought of them If the King who has no Power to declare War doth do it without consent of the State the People are not obliged to go to War. Nothing is more visible than that Obedience may yet more justly be refused when Sovereigns undertake to overthrow the State in dispensing with all the Laws and in attempting to rule by an Arbitrary Power whereas the fundamental Laws of the State which are the Bond of the Society do only allow them a limited Power Hitherto our New Divines agree with others That Subjects are dispensed with from giving Obedience to an Illegal Power But forasmuch as a State must necessarily perish when subject to a Power that is resolved to overthrow all the Question is What may be expedient and lawful for People to do in this case There are but Two means imaginable to remedy so urging an Extremity The one is to resist the Power that abuseth his Authority thereby to oblige him for time to come to keep himself within the Bounds that are set him The other is to reject him altogether and to rid themselves of him when there appears no probability of reducing him to the terms of Justice and to the Rules of his Institution 'T is against these Two Articles our New Divines oppose themselves might and main They conceive on the one hand that though the People be not bound to obey unjust Commands yet they never can have any Right to resist the Sovereign Power no not when they make use of Violence to oblige the People to execute their wicked Designs This is the Doctrine of Non-resistance or Passive Obedience which has been so much agitated of late years And as to the other Article they maintain the People have yet less right to cast off their Princes or rid themselves of them how high soever the Abuses may be they commit in exceeding the bounds of their Authority and how Tyrannical or Arbitrary soever their Government may be That Sovereign Powers depend on none but God so that the People cannot without invading the Rights of the Deity undertake to depose or punish them These are the Points we are to consider at present I begin with Non-Rresistance otherwise called Passive-Obedience CHAP. VI. Concerning Non-resistance THis Doctrine of Non-resistance seems to me to be founded upon Three Suppositions which may be easily convinc'd of Falsity First These Gentlemen forge to themselves an Idea of Sovereign Powers and ascribe certain Rights to them which they afterwards look upon as Essential to Government and consequently as Rights inseparable from Sovereignty whatsoever sort of Sovereignty it may be Which Essential Rights according to their account are these First Not to be accountable to any but God. Secondly To have the whole disposal of the Sword. Thirdly To be exempt from all Coercive Power whatsoever Fourthly Not to be liable to suffer Resistance on any pretext Fifthly to be invested with the Legislative Power They conceive that without these Rights a Prince is still but a Subject and consequently that they are all Essential to Sovereign Power and therefore inseparable from it Upon these Premises they with ease establish this Conclusion That forasmuch as the Right of not being liable to Resistance is inseparably annexed to Sovereignty the People can never of Right resist their Princes on any pretext whatsoever If we object against this their Scheme That the Rights they attribute to Sovereignty are such as cannot agree with a Sovereignty limited by Laws which allow of Resistance because there can be no Authority but by Law and according to Law Whence it follows That it is lawful to Resist him who has no Authority They suppose in the Second place That all Limitations whatsoever do only respect the Exercise of the Sovereign Power without being able in the least to derogate from the Essentials of Sovereignty and that after all these Limitations are only the Effects of the consent of Sovereigns which proceeding only from their good will are revocable ipso facto as soon as it pleaseth them so to do The Third Supposition is this They pretend that the Holy Scripture holds to us such a Power inherent in Sovereigns as can never be lawfully resisted and that it exhorts People to submit themselves so absolutely to it that they never undertake to oppose themselves against its unlawful Effects
Writers have fully made out That their Opinions are little more than of fifty years standing And it is as true that they are the fruits of Ambition Consider whether all those that ever undertook the defence of them did not do it to raise themselves in the Church and to be promoted to higher dignities than they could hope for from their merit Truth never employs any thing for its own defence but the light and evidence which are so connatural to it but would to God the Authors and Defenders of these Opinions had never practised any violent means to make their Party triumphant by which both Church and State have equally suffered and been both reduc'd to within two inches of their utter Ruine and Destruction I confess these Gentlemen have endeavoured to delude the World by alledging the Holy Scripture and Fathers in favour of their Opinion But herein they have behaved themselves as the Hereticks do in citing the Scripture and Tradition in defence of their Novelties that is to say wresting them to their own Perdition as St. Peter saith and making the Fatherâ— speak what best pleaseth them rendring them as pliable as the Sound of Bells which according to the Proverb do tink as the Fool is pleased to think And this is that which I undertake to justifie and make out by my Reflections on this Matter To perform this with some method I shall first of all explain the Original of the Power of Kings Secondly I shall examine the Extent of that Power And Thirdlâ— I shall consider the Remedy that may be justly opposed against the Abuse of it And in the sequel shall make it my business to apply these general Matters to most of the Western Kingdoms and shall make it evident That there is no pretext at all for the vast Pretensions of those who set no bounds to the Power of Kings and who believe that nothing but a Stoical and invincible Patience can lawfully be opposed to their Injustice and Tyranny And for as much as in examining these three Articles I shall be obliged to oppose the Prejudices of some New Divines I think my self bound to advertise the Reader That it is not against their Character but against their Opinions that I set my self and that I do not in the least pretend by entring into the Lists with them about a Political Question to derogate in the least from their Authority or to render their knowledg in Theological Questions suspected Tractent Fabrilia Fabri Let Smiths keep to their own Anvil for by their disregarding of this Proverb they have wandred and lost themselves They have cut the King lumping Penny-worths out of the Rights of the People and imprudently made way for the Establishing of that Tyranny which would infallibly in continuance have destroyed their Religion We must therefore if it be possible oblige these Gentlemen to permit others to enjoy their Rights and then the World will be happy I am not ignorant that there be many among those who are dipt in this Opinion that make great shew of Vertue and Piety But forasmuch as by this their Conduct they delude and hoodwink the People it is but fitting to endeavour to prevent this ill effect in defending the Truth Shall we account the Rights of Truth the less certain because they have escaped the discerning of some honest and vertuous Men Or the Delusion the less dangerous because proceeding from those that are such Let it be lawful for us then to bring back these Men from their Wandrings and to convince them that they ought no longer to defend Maxims whose falsity is not more visible than it is prejudicial to the Interest of the Church and Community REFLECTIONS UPON THE OPINIONS OF SOME MODERN DIVINES CONCERNING The Nature of Government in General AND That of ENGLAND in Particular CHAP. I. Concerning the Original of Sovereign Power WE may assert That the Rights of Sovereignty to speak properly have no Institution in the Law of Nature A Father indeed has his Children in his power and they are subject to him by a Natural Institution as well because they have received their Life from him which is the Foundation of all Good as also for that they are beholden to him for their Education which is another Life no less precious than the former But though this Power were not included within the narrow Bounds of each particular Family and though we should suppose it extended to the taking away of the Life of Rebellious Children yet certain it is that the Paternal Power is not unbounded with respect to Time for as soon as a Man is married and begins to form another Family this Act emancipates him from the Paternal Authority as Jesus Christ supposes when he said to the blessed Virgin John 2.4 Is not my hour come yet Which words Gregor Nyssâ—n explains thus An nondum venit mea hora quae praebet aetati ut imperet sui sit Juris Is not my hour come yet which allows my Age to command and leaves me at my own dispose But the case is not the same with Magistrates whose Authority reacheth over a whole Society composed of several Families for as they do not owe their Birth to the Magistrate nor are obliged to him for their Education as they are to their Parents their Command cannot be founded on the Right of Nature which subjects Children to their Parents Neither can we suppose that the Authority of Magistrates is bottom'd upon some Excellence they have by Nature above their Subjects I own there be some Vertues and Talents which do ordinarily submit the Spirits of such as know them to those who are adorned therewith and the highest degrees of Vertue and Wisdom do naturally procure a veneration for those that possess them But who sees not that this is insufficient to be the foundation of Civil Power A Magistrate is not always distinguished by these illustrious Talents and Qualifications which so powerfully attract Veneration in particular A Man may be very wise and yet be ne'er the more obeyed by those who don 't understand the price of Wisdom He may be very valiant but his Courage being unaccompanied with Prudence may render him contemptible in the Eyes of those who apprehend his Temerity It is plain then that it is not this natural difference God hath put between Men which is the ground of the Magistrates Authority Indeed the same is the case of Magistracy as of the Ceremonial Law which entred into the World because of Sin for certainly if Men in their behaviour liv'd up to the Precepts of the Law of Nature one Man would never invade what his Neighbour is possessed of either by Inheritance or by his own Industry One Man would not defile the Bed of his Neighbour or spill his Blood to hinder the Opposition his Neighbour might make against his Enterprises But because Men are so prone to violate those equitable Laws to sati fie their Passions and corrupt Inclinations
trouble a Society thought good to divide the command amongst many Those who took notice that this equality produced dissensions amongst many Governors placed the power in one person only Those that were aware that a single person might overturn the Laws and set up his will as the only rule of his conduct found it necessary to preserve to the People their share in the Government In a word every Nation chose that way they thought most sure and proper to obtain the true ends of an happy Government in order to secure and preserve the Society What I have said in general concerning the original of Soveraignty or Magistracy amongst Men shews that it cannot be denied but that the institution thereof is Divine though God did not think fit to determine it to any certain form of Magistracy whether of Monarchy Aristocrasie or Democrasie but left it to the Peoples free choice to pitch upon that form they should judge most convenient for them But to procure a farther light to this matter we must consider the Judgment of Philosophers and Divines concerning this point CHAP. II. The different Opinions of Philosophers and Divines concerning this matter IT may be said That there are three Opinions concerning the original of Soveraign Magistracy Cicero in his Books of the Commonwealth was of Opinion as appears from the definition he sets down That Governments were at first formed by an effect of pure necessity St. August de civit D. which forced the weaker to seek for aid and succour from those that were stronger to secure themselves from oppression This was also the Opinion of the famous Archbishop of Burgos in the Council of Basil Fascic Fol. 7. The Body of Christian Divines maintains that the Authority of the Sword was instituted by God as may be seen Gen. 9. And it appears that whereas before the Deluge the Patriarchs were the only Masters of their Families which gave occasion to abundance of Crimes Justice not being executed with vigour enough to put a stop to the course of exorbitances as long as it was in the hands of a common Father God was pleased to enact a Law whereby the Sword should no longer be bound up to each head of a Family but committed to one who should be particularly charged therewith by the common consent of the Society The Third Opinion is that of some new Divines and other flatterers of the unbridled power of Princes who maintain that Kings derive their Authority immediately from God and not mediately from the consent of the People Thus Peter de Marca declares himself on this point de concord lib. 2. c. 2. v. 1 2 3. following therein the sentiments of Victoria and Duval the one a Spaniard and the other a Frenchman We need not wonder if Cicero was mistaken in the deciding of this matter as being destitute of that light which Moses furnisheth Divines with He determines this point only as a natural Philosopher However we must observe that Cicero himself and the most wise amongst the Heathens have sufficiently given to understand that they conceived Magistracy without which it is impossible for a Society to subsist to be of Divine Original as well as all other good and profitable institutions for the benefit of Mankind But not to insist upon this forasmuch as all Divines agree that the original of Magistracy is from God our business only is to enquire which is the truer Opinion theirs who acknowledging the Divine institution of Magistracy maintain that this Authority is communicated to the Powers and Magistrates by the People or of those who pretend that God immediately communicates the same to the Magistrates that are invested therewith In order to the resolving of which before we pass any further we are to observe 1st That the Body of Divines who defend the former of these Opinions do agree That the Authority of Magistrates is not to be accounted less Divine because it does not immediately come down from God. They own these Two things 1st That God has ordered there should be Sovereign Magistrates to regulate and govern Societies 2ly That God having divested private Persons of the right of doing themselves Justice in case of Offences given them has ordained that the Magistrates should have the Sword put into their Hands by Capital and other Punishments to stop the violence of those who disturb the Peace of the Society and violate the Rules of Justice And in this respect they acknowledge Magistracy 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a divine Settlement and Institution Secondly We are to observe That when on the other hand they maintain That the Power of the Magistrates is conferred by consent of the People in which respect they pretend That St. Peter calls them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that doth not in the least diminish the Authority of this Divine Institution of Magistrates which they refer solely and immediately to God. Thirdly That whatsoever Notion we may frame of the Power of Magistrates whether we suppose it conferr'd upon them immediately by God as M. de Marca pretends or whether it be only mediately derived to them from God by the intervening consent of the People the thing is still the same because it is evident that this Power is not communicated to them but for the subsistence of the Society the Preservation whereof is the natural End of Government and Sovereignty Fourthly That they do not oppose this Notion of the immediate Collation of the Sovereign Power by God save only that they might express themselves more exactly and distinguish the ordinary Governments of the World from the Kingdom of Israel For the same Divines generally own That the Institution of the Royal Power in Israel was an immediate Act of God but withal maintain That the same cannot be said of other Sovereigns This laid down I say That nothing can be imagined more vain than the second of these Opinions and it is enough only to understand the terms which those Divines make use of to express their Sentiment concerning the Original of Sovereign Magistrates in every State and to consider the Proofs they alledge to evidence the falseness of it which Opinion accordingly I shall refute in the following Third Chapter CHAP. III. That Sovereigns do not receive their Power immediately from God. I Say then That it is false That Sovereigns receive their Power immediately from God. This is a Truth may be easily made out Indeed though the Power of Magistrates of what sort soever they be be of Divine Institution which of all the present Sovereign Powers whether Monarchs Commonwealths or any other Form of State was instituted immediately by God And who are the Persons invested therewith whom God has immediately called to that sort of Power All States are formed either by Conquest or by Consent of the People which intervenes in the Election at the first Founding of a State and which is renewed in every subsequent Election of Princes or which is perpetuated in successive Kingdoms
they were established upon some fundamental Laws or Customes And I very much question whether any such example can be produced no not in the Empire of the Turks which has been always lookt upon as the most Absolute and Despotical Government where the Soverâ—igns have attributed to themselves so vast and unbounded a Power and actually enjoy'd the same I know it is commonly apprehended that Conquerors such as Nimrod and many others did in so absolute a manner possess themselves of all the Rights of Sovereignty that there was nothing left to their Subjâ—cts of what Rank or Order soever But to declare my sense of this matter we are to observe First That Conquerors had no other aim but to rob other Sovereigns of their Power without changing any thing in the Government of the State they had invaded Secondly That those Invasions having no other foundation but a Conquest by force of Arms and Violence contrary to the Law of Nature which made Seneca call this sort of Conquerors Magnos furiosos Latrones great and furious Robbers these Conquerors easily perceived it was necessary for them to trim and rectifie this their unjust Power if they would have their Authority to be lasting whereupon they accordingly took care to moderate it by Conventions and Laws to the Justice of which the People gave their consent Thirdly That these Conventions and these Laws were to speak truly and properly the lawful Title of all the Authority their Subjects owned in them Fourthly That this consent of the Subjects always supposeth that the ends of Government be preserved except we should perswade our selves that there be Subjects Fools enough to consent to a Government whose aim should not be levelled at their Advantage and Prosperity 'T is horribly to delude ones self to found the Idea of an Absolute Government in all respects amongst Men upon a notion of the absolute Empire God has over all his Creatures for is it not evident that this Divine Empire supposeth an immoveable Justice and infinite wisdom and a most tender love for his Creatures which are the Essential Attributes of God and which cannot be found in any mortal Man But some it may be will tell me That I contradict the Stile of Holy Scripture in denying that Tyrants can lawfully enjoy so absolute a Power when the Prophets tell us concerning some Kings That God gave them such absolute Power as we find it exprest in particular concerning Nebuchadnezzar Dan. 5.18 19. But the answer to this Objection is obvious First That which ought to be referred to God's Permission only is not to be attributed to a concession of the Deity which latter is only sufficient to establish a lawful Right for otherwise we must say That God had given a just right to the false Prophets to deceive Ahab by their lying Oracles If this be not the case let any Man answer me these Two Questions First Whether Nebuchadnezzar sinned in using this absolute Power which he had without any consent or concurrence of his Subjects in killing them without cause and contrary to the Laws of Justice and Equity Secondly Whether God could justly punish Nebuchadnezzar as he did for making use of this Tyrannical Power which he had suffered him to invade Nemini injuriam facit qui jure suo utitur He that makes use of his own Right injures no body is a Maxim of Law. Secondly Otherwise we should be fain to suppose That those who at any times have raised themselves against Tyrants had been great Criminals whereas the Holy Scripture doth set them forth for Heroes such as Ehud who have undertaken to rid the World of their unjust oppression by killing them Possibly it may be further objected to me That by these assertions I oppose the Doctrine of the Old and New Testament which equally command all both Jews and Christians to submit themselves to the Powers that had conquered them and particularly to the Power of the Romans who pretended to be absolute over all their Subjects But it will be found that there is nothing at all of any contradiction between that which I maintain and what is here objected The Jews being conquered by Nebuchadnezzar were become the Slaves of that Monarch and owed him all manner of obedience which Bondmen do to him who has saved their Lives when it was in his power to kill them And for the rest the Scripture does not determine whether the Tyrannical power they attributed to themselves be lawful or no. Sure it is that an unlawful and Tyrannical Sovereign may rule legally in several respects in which case it imports little to those who are subject to it contrary to their wills whether the Power under which they are be lawful in all respects or not Let this therefore be laid down for a certain truth That every lawful power is necessarily limited by Laws That these Laws are the foundation of the Government from which the Sovereigns cannot depart without overturning the Society for the subsistence of which the Political Government was at first instituted by God. But this is not the only kind of limitation which may be observed in the Powers that govern Societies As God has not prescribed any sort of Government in preference to others the Wisdom of Men have diversly limited the way and constitution thereof Most People finding by Experience That Monarchy though it have many advantages before other Governments is apt to degenerate to Arbitrary Power thought it fitting that the greatest Lords of the Community should concur with the King in the exercise of his Authority others again were of Opinion That the People ought to have the chiefest share in the Government forasmuch as the main end of the Government is to make them happy These different apprehensions of Men have established the several forms of Government the aim of those who contrived those different forms being only to prevent oppression and injustice which directly cross the end of Government CHAP. V. Concerning the Extent of the Power of Sovereigns WHat I have here set down concerning the Nature of Governments the most Absolute of which are not unbounded by the Laws of God by the Laws which constitute the Right of Nations by the fundamental Laws of the State and more particularly by Bounds prescribed to the Authority of Sovereigns sufficiently shews what is the just extent of Sovereign Power and how far Men are obliged to yield Obedience to it Indeed forasmuch as Authority and Obedience are relative terms which reciprocally establish or overthrow one another it is easie to judge That Obedience cannot be due to Authority but in proportion to the extent of the Authority Paternal Authority in the manner as God had established it under the Law could not inflict Death upon a Son but in the presence of the Judges and upon the hearing of Witnesses The Authority of a Judge cannot be discharged but in the due Forms of Judicature and according to the Laws he cannot punish a Criminal
otherwise than by Patience when they are convinced in Conscience of the Injustice of the Laws and Commands enjoyned 'T is an easie matter to overthrow the First of these Suppositions First I would fain know who has given these Gentlemen the Power of determining as they do what is Essential to Sovereignty Do they derive these their Notions from Revelation or from Reason which is common to all Men If they say they derive the definition they give us of Sovereignty from Revelation they will do well to point us to the places of Scripture where this Notion is set down If they draw it from Reason then I cannot but wonder that so many Statesmen and Writers of Civil Matters have fail'd of stumbling on the same Notion and it seems to me an inextricable thing that so many Nations should agree to reject what they approve and to approve what they reject To say here That they draw this definition from the Idea of Sovereignty which loseth its nature when divested of these Characters shews they are willing either to abuse themselves or others by a pitiful Equivocation The word Sovereign imports a relation to Inferiors and as the relation has a certain foundation so it is likewise evident that it hath its bounds set proportionable to its foundation Where there is no Authority neither is there any foundation for Obedience Now there is no Authority but in proportion to the Laws which establish the Authority wherefore it incontestably follows There can be no Authority where the Law is so far from allowing any that it opposes it It will never cease to be true That the Authority is Sovereign though it be not so in all respects The Consuls of Rome were Sovereign Magistrates though the People had Power to oppose themselves against their Authority when they abused the Power they were intrusted with for the good of the Commonwealth In France they give their Parliaments the Name of Sovereign Courts though their Sentence be not always irrevocable The Second Supposition is only founded upon this Notion That Conquerors having invaded the Liberty and Privileges of the People were afterwards so kind to restore some part thereof to them again by their Concessions but that these Acts of Grace do not at all divest them of the Right of Acting whenever it shall please them as if their Power was altogether Unlimited and Arbitrary This Notion is much the same with that of the Partisans of the Court of Rome who maintain That the Liberties of the Gallican Church are only Acts of Grace and Favour granted to that Church whereas the French pretend That they are common Rights and Franchises which their Ancestors have constantly maintained according to what P. Pithou declares concerning them But indeed to speak truly this Supposition cannot be admitted with respect to conquered States at least for the most part Ordinarily a Conquest is made upon the Power that governs the State so that the State only changes its Master the fundamental Laws of the Land receiving no Alteration from this Change. Of this we have an Instance in England when King William conquered it who at his Coronation sware to keep the Laws of St. Edward and his Successors were fain to swear the same Now one of these Laws c. 15. T. 1. Spelm. p. 622. imports That a Prince that abuseth the Power he is intrusted with does lose the Title of King From whence it follows That his Subjects need not own or obey him and that consequently it is lawful to resist him To maintain That a King whose Power is limited by the fundamental Laws of a State and which he is invested with upon that condition when at his Coronation he swears to the People is indeed obliged to keep the said Oath for fear of God but that he is not at all engaged by this his Oath to the People is rather a piece of Raillery than Reasoning What Does not the Oath the People swear to the King oblige them in Allegiance to him and how can we then suppose that the reciprocal Oath of the King should not as well oblige him to his People Surely if we well weigh the case 't is impossible but we must discern a palpable falsity in this Opinion of Passive Obedience in the way these Gentlemen propose it First They grant a Right unto Sovereignty which is diametrically opposite to the end of Sovereignty according to the Divine Destination For the good of the Society and its Subsistence was God's End in insticuting of the Sovereign Power whereas by their Hypothesis the Sovereignty may become an instrument of the utter ruin of the Society whensoever it shall please the Sovereign his Subjects in the mean time having no means to attain the said End or being in any condition to hinder their being deprived of it Secondly They suppose That God in allowing a lawful Right to Sovereigns has subjected the People to a necessity of groaning under an Illegal Right and which God has never bestowed upon them and for the Usurpation of which he will condemn those who do arrogate the same to themselves which is much to the same purpose as if I should say That because God has established Judges he has thereby obliged the People to suffer Robbery when the Judges shall think fit to turn Robbers Thirdly They make the condition of a Civil Society more unhappy than was the condition of Families in the state of Nature before Societies were formed For the liberty of defending one's self is permitted to every one by Nature but after the Society is once formed it would follow That the whole Society would be obliged by a Principle of Conscience to suffer their Throats to be cut by a Prince of the humour of a Nero or a Caligula Fourthly They turn to meer Chymera's and Visions whatsoever the wisdom of Men have been able to find out to make States happy by securing them against Tyranny I speak of Laws and Oaths the Laws are the bands and cement of the Society and the foundation as well as the measure of the Obedience we owe to Princes The Oaths are the Seal of the Contract by which the Subjects are obliged to obey them upon condition that they govern according to Law. But all this is to no purpose and is of no use to the People as soon as the Tyrant thinks fit to overturn the Laws and to mâ—ke a Scoff at his Oaths Forasmuch as the Third Supposition viz. That the Scripture maintains Non-resistance with regard to Sovereigns whether they act according to or against Law is of greater importance it will be convenient to examine the same more heedfully and the rather because Men of Abilities and Learning have endeavoured strongly to assert it and to make it pass current with others and that with all their might CHAP. VII That the Scripture doth not assert the point of Non-resistance FOrasmuch as the Doctrine of Non-resistance directly thwarts a natural Principle to wit that of our
Psal 18.50 and his Anointed Ones 2 Sam. 22.51 which Title is given to Saul as well as David and Josiah all those Expressions respect God's Establishment of Kings after that the People had earnestly and obstinately demanded to be govern'd by their Ministry As to the second Head which respects the Laws that God prescribes to the Jews to regulate the Choice and the Conduct of their future Kings set down by Moses in Deut. 17. v. 14 15 16 17 18 19 20. We may therein observe these two things 1st That God supposeth that forasmuch as they would some time after set up a King over them they would also suppose it lawful for them to prescribe to the Royal Power the Form and Rules which their Neighbour-Nations amongst themselves had set to that Form of Government 2ly That God leaving to the People the natural Right of limiting the Royalty amongst themselves according to their own liking and fancy or for giving it more scope and liberty as their Neighbours had done only thought good to prescribe to them these Rules and Limitations 1. God limits their choice as to the Person of a King that he must be one chosen by himself 2. They might not choose a Stranger 3. He do's not allow the King to multiply Horses 4. Nor to lead back the People to Egypt 5. Nor to have great store of Wives 6. Nor to heap up vast Riches 7. He enjoyns him to study the Law of God and have it always with him to observe and keep it And 8. To do Justice equally to all without distinction These are the Laws which Josephus hath compendiously set down Lib. 4. cap. 8. p. 123 after Philo in his Treatise concerning the Creation of the Prince Now it is natural and obvious to conclude from all this 1. That God doth not in that place proscribe a plat-form of a Monarchy for the Government of the Jews but only supposeth that the Jews being desirous of Monarchy would be apt to borrow the Model of it from the Neighbour-Kingdoms 2. That in prescribing some Rules concerning the choice and behaviour of a King he endeavors to prevent the State of Israel from falling into the Inconveniences into which their Neighbour-Nations had cast themselves by allowing their Kings or at least suffering them to take too great a Power and Authority whether in Matters of State or Religion 3. That he supposeth that the People ought to oblige the King to observe these Laws of God and that they might oppose themselves to Princes who at any time should have the boldness to violate them as Josephus expresseth himself in the place quoted before 4. That he allows the People of Israel the same Rights to oppose themselves against the unjust Enterprizes of their Princes turn'd Tyrants which other Nations were possest of against their Princes when they abused their Authority the Reason why People desire a King being that he may Judg and Govern them not that he should Destroy them by playing the Tyrant It is of importance to make these Observations because it appears that in all this God did so far accommodate himself to the Design of the Jews that he never pretended to carry his Laws any farther for we see he does not speak to them concerning the Manner how they ought to behave themselves when they should be attak'd or subjugated by Foreign Powers as supposing that common sense would be sufficient to instruct them that in those Cases they were to follow the Example of other Nations who bore patiently the Yoke of the Prince that conquer'd them These things thus laid down it clearly appears that God set Bounds to the Royal Power long before he established any King in Israel and that the Jews could not but believe that Kings had another Law set them than that of their own Wills. Indeed we see 1st That this Institution did not at all derogate from the Rights of the People to choose their own Kings under certain Conditions and by a form of Treaty Compact or Capitulation We find that the Election of Jephtha Judg. 11.10 clearly supposeth this as likewise afterward the same may be seen in the Election of Saul David and Solomon 1 Chron. 28.8 and 1 Chron. 29.24 We find that Ishbosheth was brought into the Camp by Abner only to show him to the People that they might consent to the choice of him 2 Kings 2.9 2ly Though this Institution seem to be immediate yet did it not at all hinder or prejudg the Peoples Right of making Treaties and Capitulations with their Prince and consequently of rejecting them when at any time they should invade or violate the said Rights and Capitulations And of this we have an illustrious Example in the Sons of Samuel whose ill administration gave the Jews an occasion to demand a King by which means Samuel himself was as we may say obliged to renounce his Power as Judg which notwithstanding he had received immediately from God himself 3ly How immediate soever the Kings of Juda may have been established by God yet they never had the Character of an Arbitrary and unbounded Power as is suppos'd by those who would infer that because Monarchy was instituted by God the Power of him that is invested with it cannot be justly limited neither can for any Misdemeanour whatsoever be deposed To make it more sensible and evident we need only take notice of what the Scripture tells us in several places 1st They could not alienate the Lands and Countries that belonged to the State to any Strangers neither could they take them from their Subjects by way of Truck or Exchange as appears from that History of Naboth 1 Kings 21. 2ly They could not invade the Sacerdotal Functions as is apparent from the History of Vzzia who was boldly and couragiously resisted by the High Priest Azaria and his Colleagues 2 Chron. 26.18 3. They could not constrain the Levites to go to War that Tribe being excepted from all the rest who were subject to that Service as Abulensis owns it 1 Kings 9.22 4. They could impose no Tributes but in case of Necessity and with the consent of the People and those who have undertaken to do otherwise have been censured therefore by the Prophet Mic. 3.1 Not to mention that the excessive Tributes Solomon imposed on the People were the cause of the ten Tribes shaking off Rehoboam's Yoke 1 Kings 12.3 4ly I say that though God had seemed to fix the Royal Dignity to one Family to wit that of David yet was it not so bound up that the Succession must always pass from the Father to the eldest Son and not to the younger Thus we see that Solomon was preferred to Adonijah by David by the consent of the People Thus Rehoboam designed to settle the Succession upon Abijah the Son of Maachah as thinking him most fit for Government though he had elder Brothers 2 Chron. 11.22 Jehoshaphat on the contrary preferred Jehoram to the Succession before all his other Sons
themselves to have Right and that it was their Duty to reject Athaliah who tho she was a Woman yet had invaded the Throne 2 Kings 11 ch ver 3. which the Jews pretend to be contrary to the Law set down in the 17 of Deuteronomy 4ly They declare that King Herod appeared as a Criminal and indicted Person before the Sanhedrim tho they mistake themselves in the story related by Josephus lib. 14. cap. 17. Antiq. whence it appears that he was only Vice-Roy I acknowledge that Casaubon Exercit. 13. § 3. from whence Bishop Vsher seems to have taken it maintains that the Jews believe That no Creature can judge the King but God alone and to this purpose quotes a passage out of Midrasch Devarim Rabba in Shophetim but it is now 64 Years since Schickard has observed Casaubon's mistake in handling a matter he did not understand for indeed the Jewish Maxims are directly opposite to it 1st In the place by him cited we find a Gloss which shews that that passage did not concern the Kings of Judah but those of Israel who by their Power had changed the Government into Tyranny Schickard de Jure Regio pag. 63 64. and trampled under Feet the Laws of God which made them obnoxious to punishment 2ly We must observe that the Jews believ'd that the Maxime never took place but a little before the last extirpation of their States upon occasion of one of their last Kings named Jamneus Gemar in cap. 2 Sanhedrim I own that Samuel doth not set down any express Law for the deposing of Kings or punishing of them when turn'd Tyrants but yet he supposed as a thing certain and evident 1st That their Crimes being contrary to the Law were punishable according to the general Definitions of the Law against Idolaters and other Criminals We don't find that God has spoken any thing in particular neither concerning the High-Priest from whence the Papists falsly conclude That he was exempt from Punishment tho he did transgress the Law. 2ly I say that tho the Execution of those Laws was not committed to Inferiour Magistrates yet did it of right belong to the publick according to the natural Dictates of common Sense But after all whatsoever Idea we may frame of the Jewish Monarchy I maintain that it cannot be of any consequence to other States 1st Because that State was formed immediately by God for particular Ends which do not respect other Societies God might by Example grant to the Family of David which he had a mind to distinguish from others some Prerogatives which he had no design to communicate to other Soveraigns 2ly Because it is false that God has granted any particular Right to the Kings of Israel contenting himself to give way to the Peoples desire who would be govern'd by a King like their Neighbours 3ly Because whatever the Rights of Royalty may have been amongst the Jews it is certain they have been abolished by an Order of Providence which has wholly destroy'd the State of the Jews and the Rights of their Kings We don't find that Jesus Christ obliged his Followers to regulate their Obedience to Soveraigns according to the measure of Obedience the Jews rendred to their Kings 4ly Neither do we see that the Jews since their dispersion did ever take part with Tyrants when the States where they lived rejected them or that they thought themselves oblig'd thereto by the Law. 5ly We should be forced to suppose that all the Christian States and all the Bishops and Pastors in the Churches and States without the Roman Empire had been pitifully mistaken in not following or recommending this Judaical Form of Despotical Royalty and purely Tyrannical described by Samuel which is so strangely extravagant that it is unworthy to insist on the refutation of it CHAP. X. Concerning the Royal Law in favour of the Roman Emperors 'T IS a difficult thing to understand the Nature of the Western Governments without being acquainted with the Nature of the Government of the Roman Emperors of that Empire whose Ruin has been the rise of most of the Western Monarchies Now it is certain that as Contraries serve to illustrate one another so the opposition which is found between the Constitution of those Kingdoms and that of the Roman Empire will afford us a clear sight of the Characters which distinguish them We must know then that in the Year 729. of the City of Rome Dion lib. 53. Tacit. annal lib. 2. Augustus and Norbanus being Consuls Lata est Lex Regia quâ summa Regia Potestas quam sibi Populus Romanus ab ejectis Regibus sumpserat in unum Principem translata est ita ut is nulla Legis necessitate teneretur omnique jure scripto solutus esset ei verò parerent omnes The Royal Law was enacted whereby the Sovereign and Kingly Power which the People of Rome ever since their rejecting of the Kings had taken to themselves was transfer'd upon the Prince alone so that he was not bound to the Law at all and was exempted from all written Constitutions but that all were to obey him This is the true Epocha of the Power which the Roman Emperors had of making Constitutions and to publish Answers to Questions of Law proposed to them Antonius Augustinus has published some of the Remains of the Royal Law which was divided into several Tables See here some of the chief Articles of it which Gruterus has inserted in his Inscriptions pag. 242. foedusve cum quibus volet facere liceat ita uti licuit Divo Augusto Ti. Julio Caesari Augusto Tiberioque Claudio Caesari Augusto Germanico Vtique ei Senatum habere relationem facere remittere Senatus-consulta per relationem discessionemque facere liceat uti licuit Divo Augusto c. Vtique cum ex voluntate Authoritateve jussu mandatuve ejus praesenteve eo Senatus habebitur omnium rerum jus perinde habeatur servetur ac si è lege Senatus edictus esset habereturque Vtique quos Magistratus potestatem Imperium Curationemve cujus rei petentes Senatui Populoque Rom. commendaverit quibusque suffragaâ—â—onem suam dederit promiserit eorum Comitiis quibusque extra ordinem ratio habeatur Vtique ei fines Pomoerii proferre promovere cum ex Republica censebit esse liceat ita uti licuit Ti. Claudio Caesari Augusto Vtique quaecumque ex usu Reipublicae Majestate Divinarum Humanarum Publicarum Privatarumque rerum esse censebit ei agere facere jus potestasque sit ita ut Divo Augusto Tiberioque Julio Caesari Augusto Tiberioque Claudio Caesari Augusto Germanico fuit Vtique quibus Legibus PlebÃsve scitis scriptum fuit ne Divus Augustus Tiberiusve Julius Caesar Augustus Tiberiusve Claudius Caesar Augustus Germanicus tenerentur his Legibus Plebisque scitis Imperator Caesar Vespasianus solutus sit quaeque ex quaque Lege rogatione Divum Augustum Tiberiumve Julium Caesarem Tiberiumve Claudium Caesarem Augustum Germanicum facere oportuit
St. Austin speaks lib. 3. confess c. 8. yet it is no less notorious that this Compact doth not respect Tyrants Accordingly we see that the wisest of the Emperors did so little believe that it was lawful for them to govern arbitrarily that Trajan in favour of whom the Royal Law was renewed at the time of his exaltation to the Empire addresseth himself in these words to the Prefect of the Praetorium Accipe hunc gladium pro me si rectè agam sin aliter in me magis quod moderatorem omnium errare minus fas sit Take this Sword and use it for me in case I rule well but if not rather against me because it less becomes him that rules over all than it does others to commit an Error Dion Aurel. Victor 2ly That the Emperors who were most renowned for Vertue did never affect to publish any Laws of their own Heads till after they had got them approved by the Senate This is that which Lampridius records concerning Alexander Severus and we see the same practis'd by Theodosius l. Humanum C. de F. But whatever this Royal Law may have been sure it is 1st That the same was abolished together with the Roman Empire which ended in the West with Augustulus 2ly That it ceased in the East with the Emperors of Constantinople 3ly It is certain that they who ruin'd the Empire in the West did never adopt this Royal Law to govern their Subjects by that Arbitrary Rule 4ly It is also certain that the Princes who since the Year 800 have succeeded Charles the Great and who have taken to themselves the Names of Roman Emperors did not govern according to this Law nor ever pretended that that Law ought to be observed in favour of them under pretence of their bearing the Title of Roman Emperors This is that which I believe it will be of use solidly to evince though I intend to do it very compendiously that I may not tire the Reader CHAP. XI That the States of the West and of the North never knew this Royal Law. THough the People of the West allow'd their Princes the Title of King yet it may be averr'd that the most part of those Kingdoms which had their Rise from the Ruins of the Roman Empire never owned this Royal Law. The Power of their Kings was originally limited as Caesar witnesseth in his Commentaries concerning the German Kings which were to speak properly only Commanders or Generals I make particular mention of the Germans because for the most part they were the Founders of the Northern and Western Kingdoms Germany having been as it were the Nursery from whence have proceeded most of those Nations who at this Day have any Name in Europe See what Tacitus asserts concerning the German Kings Nec Germanorum Regibus infinita aut libera potestas est de minoribus rebus Principes consultant de majoribus omnes Rex aut Princeps auditur Authoritate suadendi magis quam jubendi potestate si displicuit sententia fremitu aspernantur Neither is the Power of the German Kings altogether free or unbounded Matters of lesser Moment are left to the Advice of the Princes but those of greater Concern are debated by the whole Society they hear the King as one having Authority to persuade rather than any Power to command them and if his Sentiments displease them they are rejected with boldness Caesar gives us much the same portraicture of the Kings of the Gauls And that their Successors who tore the Roman Empire to pieces have retained this Form of a Limited Monarchy is Matter of incontestable Evidence to every one that will take a little pains to peruse the Histories of those Nations to run over their Laws and take notice how they have carried it towards their Kings when-ever they fell to Tyranny They who would be informed how far the Power of the Gothick Kings in Spain was limited need only to cast their Eyes upon the account which Gregory of Tours gives us Lib. 2. cap. 31. concerning this Matter and upon their History in the Chronicle of St. Isidorus We have the fundamental Laws of their Kingdom set down by Molina de Hispan Primogenit Cap. 2. N. 13. But this appears yet more clearly from the Body of their Laws which is still extant and published by Lindenberg 1st It appears that their Laws were enacted ex universali consensu Civium Populi by the universal Consent of the Citizens and People Lib. 1. Tit. 7. 2ly It appears that the Kings were no less obnoxious to the Laws than the Subjects themselves Lib. 2. Tit. 2. 3ly It appears not that the Romans Laws and much less their Royal Law had any Authority amongst them Lib. 2. Tit. 9. 4ly It appears that their Kings had not so much as the Power to pardon Crimes without the consent of the Bishops and chief Lords Lib. 6. Tit. 7. Lastly It is evident from their History that their Kings were liable to be deposed by the States when ever they went about to transgress their Bounds and tyrannize over their Subjects I confess that the Council of Toledo IV. in their last Canon thus express themselves Quicunque amodo ex nobis vel totius Hispaniae populis qualibet conjuratione vel studio sacramentum fidei suae quod pro Patriae Gentisve Gothorum statu vel conservatione Regiae salutis vel incolumitate Regiae Potestatis pollicitus est temeraverit aut potestate Regni exuerit aut praesumptione Tyrannicâ Regni fastigium occupaverit Anathema in conspectu Dei Patris Angelorum atque ab Ecclesia Catholica quam perjurio profanaverit efficiatur extraneus ab omni Coetu Christianorum alienus cum omnibus impietatis suae fociis quia oportet ut una poena teneat obnoxios quos similis error invenerit implicatos Whosoever from this time forwards either of us or of any of the People of Spain shall by any Conspiracy or Attempt break the Oath of his Fidelity he has taken for the welfare of his Country and the Gothick Nation the conservation of the King's Life and maintenance of the Royal Power or who shall deprive him of his Kingdom or by a Tyrannical Presumption usurp the Throne let him be Anathema in the sight of God the Father and the Angels and be cast out from the Catholick Church which he has profaned by his Perjury and be turn'd out of all Christian Assemblies with all the Complices and Associates of his Wickedness because it is but fit that all they should be liable to the same Punishment who are involved in the same Crime The same is repeated in the Council of Toledo V. cap. 1. and in the Council of Toledo X. Cap. 2. But we may affirm with truth that those who have worn this Canon threadbare by their frequent citing of it did either not understand it or changed the sense of it to impose upon and delude others Wherefore let those that read these words well observe
the same Limitations of the Regal Power in Denmark as Pontanus observes in his 8th Book and it was for endeavouring to break through these Bounds that Christiern the II. was deposed as may be seen in Petersen in Chron. Holsat Where he hath set down the Acts and Reasons of the State of Denmark about that Proceeding That the Power of the Kings of Hungary was a Power limited by the Fundamental Laws of the State is a Matter so notorious that Chalcondilas has made it his Observation in the second Book of his History where he compares the Royalty of Hungary in that respect to the Kingly Power in England And which may be farther made out by the Fundamental Laws of Hungary set down by Bonfinius Decad. 4. lib. 9. Where we also find the Oath taken by those Kings at their Coronation being the most expresly conditional that can be imagined Chalcondile saith the same Thing of the Kingdoms of Arragon and Navarre Lib. 5. where he observes that the Kings did not create the Magistrates that they could not make any Garrison without the Consent of the People and that they could not require any thing of them contrary to their Customs that is to say contrary to their Laws Accordingly we find that the Kings of Spain have no Power to lay any new Impositions upon their Subjects without their consent They are obliged to swear they will observe the Laws And in Arragon the People declare to the King at his Coronation that if they do not perform their Oath and Promise their Subjects are thereby set free from their Oath of Allegiance We find the same Thing in the History of the Kingdom of Portugal but especially in that part of it which gives an Account of the Reign of Alphonsus III. The Fundamental Laws of which Kingdom we find in the 17th Title of the Ordinances of Portugal Lib. 2. § 2 3. seq So true is it that all those Kingdoms never in the least supposed that their King had an Absolute Power over them And it is as certain that almost all those States have always maintained That the Power of their Soveraigns was so limited 1. That they could make no Laws without the States General of the Kingdom 2. That they could not levy any Mony on their Subjects without their Consents 3. That they could not break the Laws according to their Will and Pleasure 4. That in case of their violating the Fundamental Laws of the State they were liable to be deprived of a Power which they abused 5. That the States were free to chuse such a Form of Government and such a Person for to govern them as they thought most expedient for them This is that which I intend to prove more particularly by Examples taken from the Empire and the Kingdoms of Poland France Scotland and England to which I shall add some Remarks upon those Titles which deceive some who consider Things of this Nature with too little attention CHAP. XII That the Power of the Emperors of the West is a Limited Power THis is a Matter that may be easily gathered from these following Instances 1. Because Charles the Great who was the first that took upon him the Title of Roman Emperor reigned according to the Customs of the Princes of Germany of whose Opinion concerning an Absolute and Despotical Government Tacitus has given us some Account who represents them as having the greatest abhorrence for it 2. Because Lewis the Good did himself acknowledg that the Soveraign Power was shared between him and the chief Members of the Empire Capitular Lib. 2. Tit. 3. Sed quanquam summa hujus ministerii in nostra persona consistere videatur tamen Divinâ Authoritate humanâ ordinatione ita per partes divisum esse cognoscitur ut unusquisque vestrûm in suo loco ordine partem nostri Ministerii habere cognoscatur But though the whole of this Ministry seem to consist in our Person yet it is known to be so shared and divided as well by Divine Authority as Humane Ordination that every one of you in his respective Place and Order is known to partake of this Ministry Thus was he pleased to express himself in the Assembly of the States General whose Authority he owned to be as much of Divine Right as his own which made Charles du Moulin the most famous of all French Lawyers say Ergo solum Caput non omnia potest imo persona Principis non est Caput nisi Organicum sed verum Caput est Principatus ipse cum membris integrantibus eum Wherefore the Head alone cannot do all yea the Person of the Prince is only the Organical Head but the true Head is the Principality it self with its integral constituting Members Which are his express words in his Commentaries upon the Stile of Parliament dedicated to the first President of Paris and printed with Priviledg 3. Because though the Western Empire did seem to be so Hereditary that the Emperors had divided it amongst their Children yet in process of time it became Elective which began to take place in the Eleventh Century in the Person of Rudolphus 4. In that they always excluded Females from the Succession to the Empire though they had respect in their choice to the Imperial Blood. With respect to the Rights of Soveraignty we find that tho the Empire be a Monarchical Government yet we see it is mixed with Aristocracy for the Emperor cannot enjoy it but with the Consent of the States of the Empire without making himself liable to be contradicted and deposed also He has not the Right of making Laws without the Consent and Authority of the States of the Empire He has no right to declare War without the foregoing consent of the States He has no right of levying any Imposition on the States without the Consent of the Diets Whenever he begins to usurp the Rights that do not belong unto him and to infringe the Rules of Government he has sworn to observe the States have a Right to oppose his Enterprizes to repel Force with Force and finally to deprive him of the Empire in case he continue in the Design of changing the Form of Government For though there be no Laws which bound and regulate the Article of the Deposing of Emperors when they abuse their Power for the overturning of the State or for invading the Rights of the Princes of the Empire and Imperial Cities yet the Germans have always held and still do hold it for a certain Truth that it is a Right inherent in the Empire to deprive an Emperor of the Imperial Power and Dignity and to confer the same on another This is the common Opinion of the German Lawyers represented to us by Lampadius Arnizaeus Diderick Conringe and many others And indeed we may say that there is nothing more certain if we consider the Examples of Emperors that have been deposed since these 7 or 800 Years Examples that are neither rare
nor unknown and upon occasion of which the States of the Empire have had an opportunity to declare make out their Rights and Pretensions One of the first Examples we find respecting this Matter is the Deposition of Lewis the Good in the Year 833. The Acts whereof we may see in Baronius Goldast du Chesne and le Comte Whereupon we may make these Reflections 1. That the Thing was done with the Consent of the Bishops and of all the Nobility 2. That the Estates above all accuse him for having broke his Coronation-Oath 3. That though this Lewis was afterwards restored to the Throne of the Empire yet those that restored him never contested the Power the State had to reject a Prince who overturn'd the Rules of Government but supposed only that he had not been duly convinced of the Crimes laid to his charge We have another Example in the Deposition of Henry IV. The Archbishops Bishops Dukes and Earls declare that they had not sworn to him till after he had engaged himself by his Oath to them to observe the Laws and the Capitulations of the Empire so that having now violated them they were set free from the Oath they had sworn to him and that they considered him as an Enemy against whom they would wage war to their last breath Lambert Schafnaburg One of the last Instances we find in the deposing of the Emperor Wenceslaus who was deposed by the Electors of the Empire in the Year 1400 after that he had been twice taken Prisoner and had been exhorted by the State to amend and take up from his irregular Actings Aventin lib. 7. Annalium Cuspinian in Vita Venceslai We may see the most part of these Articles and many more solidly confirmed in the Book of Carpsovius de Lege Regia Imperatorum Germaniae and in the Imperial Capitulations and other Laws which he has caused to be printed at the End of his Treatise CHAP. XIII That the Power of the Kings of Poland is Limited WE find the same Limitation in other States whether they be Successive or Elective I shall content my self to alledge only one Example concerning the Kingdoms that at present are Elective and that shall be of the Kingdom of Poland Poland from the Relation of Cromer gives us an illustrious Example of the Wisdom of Northern People in bounding the Power of their Princes After that the Family of Lech the first Founder of that Kingdom was extinct that State changed the Royal Government into that of XII Waywods otherwise called Palatines These Palatines abusing their Authority they re-established the Regal Government in favor of Cracus whose second Son was expell'd by the Polanders for killing his Elder Brother They afterwards chose the Daughter of Cracus for their Queen who 't is said having drowned her self to avoid Marriage the Polanders again established 12 Palatines as they had done before but afterwards suppressed them again because they found them insufficient to defend the Countrey and chose Premiel for their King. This is Lesko the 1 who lived about the year 750. It was not till the Year 965 that Miesco turn'd Christian and took upon him the Title of King of Poland which Title was confirmed by the Emperor Otho III to Bosletas his Successor His Successors having reigned until Lesko Surnamed the Black who was forced by Flight to quit the Kingdom because he was not able to resist the Tartars and died without Issue the Poles wearied with intestine Wars excited by the Ambition of their great Lords chose Premiel to be their King who being kill'd without leaving any Children behind him they made choice of Ladislaus who was afterwards desposed for Male-Administration by the States General Wenceslaus King of Bohemia who had been chosen in his stead dying in the Year 1305 Ladislaus was recall'd to the Government to whom Casimir his Son succeeded who in the Year 1370 designed for his Successor with consent of the States Lewis the Son of Charles King of Hungary by his Sister The Poles after the Death of Lewis chose Edwiga his Daughter upon condition that she should marry the Person whom the States should recommend to her for a Husband the Person recommended by them was Jagello Duke of Lithuania who had the name of Ladislaus given him by the Archbishop of Gnesna who anointed and Crowned after he had first baptized him He outliv'd Edwiga who died without Children and had for Successors the children of his fourth Wife who reached until Sigismund Augustus after whose Death the States chose in the Year 1573 Henry Duke of Anjou who after he had reigned four Months in Poland abandon'd the Kingdom to take possession of the Crown of France and was deprived of that of Poland by the States as may be seen from the Acts recorded by Historians This Vacancy occasion'd a Division in the States one part of them having chosen the Emperor Maximilian the Second and the other part Anne the Sister of Sigismund Augustus to whom they gave Stephen Battori Prince of Transylvania for her husband who Married the said Anne and was Crowned at Cracovia in 1576. After the Death of Stephen the States chose Sigismund Son of John III King of Sweden and of Katharine Daughter of Sigismund I. of that name King of Poland It is evident from this Abridgment 1st That the Poles always pretended to be the Masters that had right to give the Form to their State which seemed to them most comporting with the Good and Welfare of it 2ly That they took it for granted that they had Power to reject those Princes or Palatines whose Behaviour was contrary to the Publick Good for which they had raised them 3ly That they ever had an Eye to Succession so far as to bestow the Crown sometimes upon Daughters yet not thinking themselves bound to it but only so far as the good of the State did permit 4ly That they had regard to the appointing of a Successor when the States had first consented to it 5ly That the Flight or Desertion of their Kings has appear'd to them a sufficient Ground to proceed to a new Election in their stead and to reject them This is evident from the History of Lesko surnamed the Black and of Henry the III of France 6ly That the anointing and Crowning of their Kings was of no avail to dispense with their Oath in which they publickly declare That if they do not observe the Laws of the State the People are dispensed from their Oaths of Fealty they have sworn to them CHAP. XIV That the Monarchy of France is not an Absolute Empire but a Limited Royalty 'T IS not of to day only that some have imagined the Monarchy of France to be an unlimited Power and an Absolute Empire Bodinus was of that opinion before them but they that follow his sentiment understand nothing of that Constitution or if they do have a greater desire to flatter the unjust Pretensions of that Court than to maintain the