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 anyone 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 everywhere 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 suit with the tender and sacred name of father; and altogether false, if he find the contrary. But as every man that considers what has been, 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; 'tis 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 anything 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 does 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 been said, salus regis est lex suprema, which certainly never entered into the head of a wiser or better man than Filmer.
His reasons are as good as his doctrine: 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 ancients 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 been 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 been so various, that what is true in one, is not so in another; he is pleased only to affirm it, without giving the least shadow of a reason to persuade 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 been 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 been blamed if there had been no law; for that which is not, cannot be transgressed. Cain could not have feared that every man who met him would slay him, if there had not been 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 does 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 been 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 Ham had laws, when the blessed descendants 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 goes 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, for they asked one. They could not have asked one of Samuel, if he had been a king. He had not been 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 been a law to the people, it must have been made publick; but as it was only to the king, he laid it up before God, to testify 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 been 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 outrageously 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? 'Tis 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 infer 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 by the most outrageous injuries done to the people, sometimes by a foreign aid? as kings were by the power of the Romans imposed upon the Britains, that they might waste the forces, and break the spirits of that fierce people. This Tacitus acknowledges, and says, That amongst other instruments of enslaving nations, they imposed kings upon them . The Medicis 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 Caesar 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 affections 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 villainies, and that they are on that account become the object of the publick hatred, they can do no less than hate and fear those by whom they know themselves to be hated. The Italians ordinarily say that he who does an injury never pardons, because he thinks he is never pardoned: But he that enslaves and oppresses a people does 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 beforemention'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 been left at large, because it was thought they would never abuse it, has long since been 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 owes 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 anything was due to them for the sake of their parents; they could have no prerogative by birth: Nimrod was the sixth son of Cush the son of Ham, who was the youngest son of Noah: his kingdom was erected whilst Noah and his elder sons Shem and Japheth, as well as Ham, Cush, and his elder sons were still living. Saul was the son of Kish, 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 does not confer a benefit upon the people, but injures them in the most outrageous 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 does the greatest mischiefs, resembles the best of all friends who confers the most inestimable benefits, and consequently does as justly deserve the utmost effects of hatred, as the other does 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 does 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 been made between nations and their kings, have been framed according to the will of those nations; and consequently how many soever they are, and
whatsoever the sense of any or all of them may be, they can oblige no man, except those, or at the most the descendants of those that made them. Whoever therefore would persuade us, that one or more nations are, by virtue of those contracts, bound to bear all the insolences of tyrants, is obliged to show, that by those contracts they did forever indefinitely bind themselves so to do, how great soever they might be.
I may justly go a step farther, and affirm, that if any such should appear in the world, the folly and turpitude of the thing would be a sufficient evidence of the madness of those that made it, and utterly destroy the contents of it: but no such having been as yet produced, nor any reason given to persuade a wise man that there has ever been any such, at least among civilized nations (for whom only we are concerned), it may be concluded there never was any; or if there were, they do not at all relate to our subject; and consequently that nations still continue in their native liberty, and are no otherwise obliged to endure the insolence of tyrants, than they, or each of them may esteem them tolerable.
2. To the second: Tho the words of Samuel had implied a necessity incumbent upon the Hebrews to bear all the injuries that their kings should do to them, it could no way relate to us; for he does not speak of all kings, but of such as they had asked, even such as reigned over the slavish Asiaticks their neighbours, who are no less infamous in the world for their baseness and cowardice, than detestable for their idolatry and vices. It was not a plot or trick of Samuel to keep the government in himself and family: Such scurrilous expressions or thoughts are fit only for Filmer, Heylyn, and their disciples: but the prophet being troubled at the folly and wickedness of the people, who chose rather to subject themselves to the irregular will of a man, than to be governed by God and his law, did, by the immediate command of God, declare to them what would be the event of their fury; that since they would be like to their neighbours in sin and folly, he told them they should be like to them in shame and misery; since they desired to cast off the thing that was good, they should suffer evil as the product of their own counsels; and that when they should cry to the Lord from a sense of their miseries, he does not tell them, as our author falsely says, they should have no other remedy against tyrants but crying and praying, but that their cries and prayers should not be heard. It was just that when they had rejected God, he should reject them, and leave them under the weight of the calamities they had brought upon themselves. In all other cases God had ever said, that when his people returned to him, he would hear and save them. When they cried by reason of the oppressions they suffered under the Egyptians, Canaanites, Midianites, Philistines, and others, tho their
crimes had deserved them all, yet God heard and relieved them. But when they meditated this final defection from his law, and rejection of his government, God seemed to change his nature, and forget to be gracious; When ye shall cry to me by reason of your king, I will not hear you. This was the strongest dehortation from their wicked intention that can be imagined; but being not enough to reclaim them, they answered, Nay, but we will have a king. They were like to their neighbours in folly and vice, and would be like to them in government; which brought all the calamities upon them that the others suffer'd. But I know not what conclusion can be drawn from hence in favour of our author's doctrine, unless all nations are obliged furiously to run into the same crimes with the Israelites, or to take upon themselves the same punishment, tho they do not commit the same crimes.
If this was not a precept to the Israelites, instructing them what they should do, but a denunciation of what they should suffer for the evil which they had committed, the Old Testament will afford none; and I hope in due time to answer such as he alleges from the New. Nay, we may conclude there can be none there, because being dictated by the same spirit, which is always uniform and constant to itself, it could not agree with the 17th of Deuteron. which so extremely restrains such a king as God allowed, as not to suffer him in any manner to raise his heart above his brethren; and was said in vain, if at the same time it gave him a power which might not be resisted, or forbade others to resist him if he would not obey the law.
3. To the third: Whatsoever was done by the command of God against Pharaoh king of Egypt, and against the kings of the Canaanites, Midianites, Moabites, Edomites, Amorites or Philistines, by Moses, Joshua, Ehud, Barak, Gideon, Samson, Jephthah, Samuel, and the rest of the judges, comes expressly under the particular precepts and examples promised by me, to show, that God had occasionally commanded, and his servants executed his commands in resisting and destroying the persons of kings, who were their own kings also, if possession was only to be regarded. And tho this be sufficient to overthrow our author's doctrine; That we are not to examine the titles of kings, whether they be from usurpation, or any other means; but only to look upon the power : Yet they who seek truth, ought not to content themselves merely with victory; or to esteem that a victory, which is obtained by what the schools call argumentum ad hominem, grounded upon a false proposition, and is of no force except against those who are so ill advised to advance it. Therefore laying aside the advantages that may be justly taken against Filmer, for the folly of asserting the same right to be in a usurper, as in a lawful prince; and confessing that tho such as have no title, may and ought to be suppressed as enemies and robbers, when respect and obedience is due to those who are rightly instituted; I say, that none can be claimed by a prince lawfully instituted, if he assume to himself a power which is not granted to him by the law of his institution, because, as Grotius says, his legal power does not extend so far; or turn the power that is given him, to ends contrary to those for which it was given, because he thereby destroys it, and puts himself into the same condition as if it had never been. This is proved by the example of Saul; tho the people sinned grievously in asking a king, yet God assenting to their demand, no prince was ever more solemnly instituted than he. The people chose him by lot from amongst all the tribes, and he was placed in the throne by the general consent of the whole nation: But he turning his lawful power into tyranny, disobeying the word of the prophet, slaying the priests, sparing the Amalekites, and oppressing the innocent, overthrew his own right; and God declared the kingdom, which had been given him under a conditional promise of perpetuity, to be entirely abrogated. This did not only give a right to the whole people of opposing him, but to every particular man; and upon this account David did not only fly from his fury, but resisted it. He made himself head of all the discontented persons that would follow him: he had at first four, and afterwards six hundred men; he kept these in arms against Saul, and lived upon the country; and resolved to destroy Nabal with all his house, only for refusing to send provisions for his men. Finding himself weak and unsafe, he went to Achish the Philistine, and offer'd his service even against Israel. This was never reputed a sin in David, or in those that follow'd him, by any except the wicked court-flatterer Doeg the Edomite, and the drunken fool Nabal, who is said to have been a man of Belial.
If it be objected, that this was rather a flight than a war, in as much as he neither killed Saul nor his men, or that he made war as a king anointed by Samuel; I answer, that he who had six hundred men, and entertain'd as many as came to him, sufficiently shewed his intention rather to resist than to fly: And no other reason can be given why he did not farther pursue that intention, than that he had no greater power: and he who arms six hundred men against his prince, when he can have no more, can no more be said to obey patiently, than if he had so many hundreds of thousands. This holds, tho he kill no man, for that is not the war, but the manner of making it: and 'twere as absurd to say David made no war, because he killed no men, as that Charles the eighth made no war in Italy, because Guicciardini says, he conquer'd Naples without breaking a lance. But as David's strength increased, he grew to be less sparing of blood. Those who say kings never die, but that the right is immediately transferr'd to the next heirs, cannot deny that Ishbosheth inherited the right of Saul, and that David had no other right of making war against him, than against Saul, unless it were conferred upon him by the tribe of Judah that made him king. If this be true, it must be confessed that not only a whole people, but a part of them, may at their own pleasure abrogate a kingdom, tho never so well established by common consent; for none was ever more solemnly instituted than that of Saul; and few subjects have more strongly obliged themselves to be obedient. If it be not true, the example of Nabal is to be follow'd; and David, tho guided by the Spirit of God, deserves to be condemned as a fellow that rose up against his master.
If to elude this it be said, that God instituted and abrogated Saul's kingdom, and that David to whom the right was transmitted, might therefore proceed against him and his heirs as private men: I answer, that if the obedience due to Saul proceeded from God's institution, it can extend to none but those who are so peculiarly instituted and anointed by his command, and the hand of his prophet, which will be of little advantage to the kings that can give no testimony of such an institution or unction; and an indisputable right will remain to every nation of abrogating the kingdoms which are instituted by and for themselves. But as David did resist the authority of Saul and Ishbosheth, without assuming the power of a king, tho designed by God, and anointed by the prophet, till he was made king of Judah by that tribe; or arrogating to himself a power over the other tribes till he was made king by them, and had enter'd into a covenant with them; 'tis much more certain that the persons and authority of ill kings, who have no title to the privileges due to Saul by virtue of his institution, may be justly resisted; which is as much as is necessary to my purpose.
Object. But David's heart smote him when he had cut off the skirt of Saul's garment, and he would not suffer Abishai to kill him. This might be of some force, if it were pretended that every man was obliged to kill an ill king, whensoever he could do it, which I think no man ever did say; and no man having ever affirmed it, no more can be concluded than is confessed by all. But how is it possible that a man of a generous spirit, like to David, could see a great and valiant king, chosen from amongst all the tribes of Israel, anointed by the command of God and the hand of the prophet, famous for victories obtained against the enemies of Israel, and a wonderful deliverance thereby purchased to that people, cast at his feet to receive life or death from the hand of one whom he had so furiously persecuted, and from whom he least deserved, and could least expect mercy, without extraordinary commotion of mind, most especially when Abishai, who saw all that he did, and thereby ought best to have known his thoughts, expressed so great a readiness to kill him? This could not but make him reflect upon the instability of all that seemed to be most glorious in men, and shew him that if Saul, who had been named even among the prophets, and assisted in an extraordinary manner to accomplish such great things, was so abandoned and given over to fury, misery and shame; he that seemed to be most firmly established ought to take care lest he should fall.
Surely these things are neither to be thought strange in relation to Saul, who was God's anointed, nor communicable to such as are not: Some may suppose he was king by virtue of God's unction (tho if that were true, he had never been chosen and made king by the people) but it were madness to think he became God's anointed by being king: for if that were so, the same right and title would belong to every king, even to those who by his command were accursed and destroyed by his servants Moses, Joshua and Samuel. The same men, at the same time, and in the same sense, would be both his anointed and accursed, loved and detested by him; and the most sacred privileges made to extend to the worst of his enemies.
Again; the war made by David was not upon the account of being king, as anointed by Samuel, but upon the common natural right of defending himself against the violence and fury of a wicked man; he trusted to the promise, that he should be king, but knew that as yet he was not so; and when Saul found he had spared his life, he said, I now know well that thou shah surely be king, and that the kingdom of Israel shall surely be established in thy band; not that it was already. Nay David himself was so far from 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 been 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.
'Tis 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 anything 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
Ham 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 17th 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 waive 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 does not seem to have been
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 sordid, 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 been, if he had
been 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 been foretold
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 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 been 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 itself.
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 dissuasion 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 judge what influence this ought to have upon other nations, either as to obligation or imitation.
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 forever? 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 'tis good to examine what this dutiful obedience is that our author mentions. Men usually owe no more than they receive. 'Tis 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 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 does 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 been 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 'tis 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 wise, 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 does this, need not plead for impunity when he does 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, 'tis 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 'tis 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
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 befell 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 'tis not so everywhere, nor at all times; and nothing
is more irrational, than from 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 been seen in the same nation at different times: The Romans recovered
their liberty by expelling Tarquin; but remained slaves notwithstanding
the slaughter of Caesar. 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 been 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 battle, 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 often 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 been 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 by nature, and have neither
the understanding nor courage that is required for the constitution and
management of a government within themselves. They can no more subsist
without a master, than a flock without a shepherd. They have no comprehension
of liberty, and can neither desire the good they do not know, nor enjoy
it if it were bestowed upon them. They bear all burdens; and whatever they
suffer, they have no other remedy or refuge, than in the mercy of their
Lord. But such nations as are naturally strong, stout, and of good understanding,
whose vigour remains unbroken, manners uncorrupted, reputation unblemished,
and increasing in numbers; who neither want men to make up such armies
as may defend them against foreign or domestick enemies, nor leaders to
head them, do ordinarily set limits to their patience. They know how to
preserve their liberty, or to vindicate the violation of it; and the more
patient they have been, the more inflexible they are when they resolve
to be so no longer. Those who are so foolish to put them upon such courses,
do to their cost find that there is a difference between lions and asses;
and he is a fool who knows not that swords were given to men, that none
might be slaves, but such as know not how to use them.
He thinks to mend this by saying, they are not intolerable: but what is intolerable if inconveniences and miseries be not? For what end can he think governments to have been established, unless to prevent or remove inconveniences and miseries? or how can that be called a government which does not only permit, but cause them? What can incline nations to set up governments? Is it that they may suffer inconveniences, and be brought to misery? or if it be to enjoy happiness, how can that subsist under a government, which not by accident, deflection or corruption, but by a necessity inherent in itself, causes inconveniences and miseries? If it be pretended that no human constitution can be altogether free from inconveniences; I answer, that the best may to some degree fall into them, because they may be corrupted; but evil and misery can properly belong to none that is not evil in its own nature. If Samuel deserve credit, or may be thought to have spoken sense, he could not have enumerated the evils, which he foresaw the people should suffer from their kings, nor say, that they should cry to the Lord by reason of them, unless they were in themselves grievous, and in comparison greater than what they had suffer'd or known; since that would not have diverted them from their intention, but rather have confirmed them in it. And I leave it to our author to show, why any people should for the pleasure of one or a few men, erect or suffer that which brings more of evil with it than any others.
Moreover, there is a great difference between that which nations sometimes suffer under kings, and that which they willingly suffer; most especially if our author's maxim be received, That all laws are the mandates of kings, and the subjects' liberties and privileges no more than their gracious concessions; for how patient soever they are under the evils they suffer, it might reasonably be believ'd they are so because they know not how to help it: And this is certainly the case of too many places that are known to us. Whoever doubts of this, if he will not put himself to the trouble of going to Turkey or Morocco, let him pass only into Normandy, and ask the naked, barefooted and half-starved people whether they are willing to suffer the miseries under which they groan; and whether the magnificence of Versailles, and the pomp of their haughty master, do any way alleviate their calamities. If this also be a matter of too much pains, the wretches that come hither every day will inform him, that it is not by their own consent they are deprived of all honors and offices in the commonwealth, even of those, which by a corrupt custom that had gained the force of a law, they had dearly bought; prohibited to exercise any trade; exposed to the utmost effects of fraud and violence, if they refuse to adore their master's idols. They will tell him, that 'tis not willingly they leave their lands and estates to seek a shelter in the most remote parts of the world; but because they are under a force which they are not able to resist; and because one part of the nation, which is enriched with the spoils of the other, have foolishly contributed to lay a yoke upon them which they cannot break.
To what he says concerning tenures, I answer, No man in England owes any service to his lord, unless by virtue of a contract made by himself or his predecessors, under which he holds the land granted to him on that condition by the proprietor. There may be something of hardship, but nothing of injustice. 'Tis a voluntary act in the beginning and continuance; and all men know that what is done to one who is willing is no injury. He who did not like the conditions, was not obliged to take the land; and he might leave it, if afterwards he came to dislike them. If any man say, the like may be done by anyone in the kingdom, I answer, That it is not always true; the Protestants now in France cannot without extreme hazard go out of that country, tho they are contented to lose their estates. 'Tis accounted a crime, for which they are condemned perpetually to the galleys, 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 been 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 anything 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 been 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 chastised the churlish clown, who refused 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 Uriah, 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, Uriah 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 fraud. And as he did not thereby fly the sight of God, but of men, 'tis evident that he in that action feared men more than God.
If by the examples of Israel and Judah, we may judge whether the inconveniences and miseries brought upon nations by their kings be tolerable or intolerable, it will be enough to consider the madness of Saul's cruelty towards his subjects, and the slaughter brought upon them by the hand of the Philistines on Mount Gilboa, where he fell with the flower of all Israel; the civil wars that happened 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, Ahab, 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 mischiefs 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 been 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 myself 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 Witiza and Rodrigo:
the present state of Spain now languishing and threatening 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.
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 tribunes, gave them only such power, and for such a time as best pleased themselves, 'tis 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, 'tis 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 judge 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 been 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 been 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. 'Tis hard to find a tyranny in the world that has not been 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 Caesar 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, unsuitable to the modest behaviour expected from our kings, and which in time will render parliaments unnecessary to them.
On the other hand, the poverty and simplicity of the Spartan kings was no less safe and profitable to the people, than truly glorious to them. Agesilaus denied that Artaxerxes was greater than he, unless he were more temperate or more valiant; and he made good his words so well, that without any other assistance than what his wisdom and valour did afford, he struck such a terror into that great, rich, powerful and absolute monarch, that he did not think himself safe in Babylon or Ecbatana, till the poor Spartan was, by a captain of as great valour, and greater poverty, obliged to return from Asia to the defence of his own country. This was not peculiar to the severe Laconic discipline. When the Roman kings were expelled, a few carts were prepared to transport their goods: and their lands which were consecrated to Mars, and now go under the name of Campus Martius, hardly contain ten acres of ground. Nay the kings of Israel, who led such vast armies into the field (that is, were followed by all the people who were able to bear arms) seem to have possessed little. Ahab, one of the most powerful, was so fond of Naboth's vineyard (which being the inheritance of his fathers, according to their equal division of lands, could not be above two acres) that he grew sick when it was refused.
But if an allowance be to be made to every king, it must be either according to a universal rule or standard, or must depend upon the judgment of nations. If the first, they who have it, may do well to produce it; if the other, every nation proceeding according to the measure of their own discretion, is free from blame.
It may also be worth observation, whether the revenue given to a king
be in such manner committed to his care, that he is obliged to employ it
for the publick service without the power of alienation; or whether it
be granted as a propriety, to be spent as he thinks fit. When some of the
ancient Jews and Christians scrupled the payment of tribute to the emperors,
the reasons alleged to persuade them to a compliance, seem to be grounded
upon a supposition of the first: for, said they, the defence of the state
lies upon them, which cannot be perform'd without armies and garrisons;
these cannot be maintained without pay, nor money raised to pay them without
tributes and customs. This carries a face of reason with it, especially
in those countries which are perpetually or frequently subject to invasions;
but this will not content our author. He speaks of employing the revenue
in keeping his house, and looks upon it as a propriety to be spent as he
thinks convenient; which is no less than to cast it into a pit, of which
no man ever knew the bottom. That which is given one day, is squandered
away the next: The people is always oppress'd with impositions, to foment
the vices of the court: These daily increasing, they grow insatiable, and
the miserable nations are compelled to hard labour, in order to satiate
those lusts that tend to their own ruin. It may be consider'd that the
virtuous pagans, by the light of nature, discovered the truth of this.
Poverty grew odious in Rome, when great men by desiring riches put a value
upon them, and introduced that pomp and luxury which could not be borne
by men of small fortunes. From thence all furies and mischiefs seem'd to
break loose: The base, slavish, and so often subdued Asia, by the basest
of men revenged the defeats they had received from the bravest; and by
infusing into them a delight in pomp and luxury, in a short time rendered
the strongest and bravest of nations the weakest and basest. I wish our
own experience did not too plainly manifest, that these evils were never
more prevalent than in our days, when the luxury, majestick pomp, and absolute
power of a neighbouring king must be supported by an abundance of riches
torn out of the bowels of his subjects, which renders them, in the best
country of the world, and at a time when the crown most flourishes, the
poorest and most miserable of all the nations under the sun. We too well
know who are most apt to learn from them, and by what means and steps they
endeavour to lead us into the like misery. But the bird is safe when the
snare is discover'd; and if we are not abandoned by God to destruction,
we shall never be brought to consent to the settling of that pomp, which
is against the practice of all virtuous people, and has brought all the
nations that have been taken with it into the ruin that is intended for
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 been advanced for their justice, wisdom and valour, or their descendants, were found to depart from the ends of their institution, and to turn that power to the oppression of the people, which had been 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 been universally evil, God had not in the 17th of Deuteronomy given leave to the Israelites to set up a king; and if that kind of king had been asked, he had not been displeased: and they could not have been said to reject God, if they had not asked that which was evil; for nothing that is good is contrary, or inconsistent with a people's 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 yoke 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 people's crying argues some tyrannical oppression, we may remember that the people's 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 make their yoke grievous. 'Tis 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 allege 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 yoke 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 been best known from Bulion the late treasurer, who finding Lewis the Thirteenth to be troubled at the people's 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 yoke, 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 yoke 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 a 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 yoke 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 alleges 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, Reuben's pollution of his father's bed, Abimelech's slaughter of his seventy brothers, and many of the most wicked acts that ever were committed, may pass for laudable and innocent. But if Saul were not to be blamed for killing the priests, why was David blamed for the death of Uriah? Why were the dogs to lick the blood of Ahab and Jezebel, if they did nothing more than kings might do without blame? Now if the slaughter of one man was so severely avenged upon the authors and their families, none but such as Filmer can think that of so many innocent men, with their wives and children, could escape unreproved or unpunished. But the whole series of the history of Saul shewing evidently that his life and reign were full of the most violent cruelty and madness, we are to seek no other reason for the ruin threatened and brought upon him and his family. And as those princes who are most barbarously savage against their own people, are usually most gentle to the enemies of their country, he could not give a more certain testimony of his hatred to those he ought to have protected, than by preserving those nations, who were their most irreconcilable enemies. This is proved by reason as well as by experience; for every man knows he cannot bear the hatred of all mankind: Such as know they have enemies abroad, endeavour to get friends at home: Those who command powerful nations, and are beloved by them, fear not to offend strangers. But if they have rendered their own people enemies to them, they cannot hope for help in a time of distress, nor so much as a place of retreat or refuge, unless from strangers, nor from them unless they deserve it, by favouring them to the prejudice of their own country. As no man can serve two masters, no man can pursue two contrary interests: Moses, Joshua, Gideon and Samuel, were severe to the Amorites, Midianites and Canaanites, but mild and gentle to the Hebrews. Saul, who was cruel to the Hebrews, spared the Amalekites, whose preservation was their destruction: and whilst he destroyed those he should have saved, and saved those that by a general and particular command of God he should have destroyed, he lost his ill-govern'd kingdom, and left an example to posterity of the end that may be expected from pride, folly and tyranny.
The matter would not be much alter'd, if I should confess, that in the time of Saul all nations were governed by tyrants (tho it is not true, for Greece did then flourish in liberty, and we have reason to believe that other nations did so also) for tho they might not think of a good government at the first, nothing can oblige men to continue under one that is bad, when they discover the evils of it, and know how to mend it. They who trusted men that appeared to have great virtues, with such a power as might easily be turned into tyranny, might justly retract, limit or abolish it, when they found it to be abused. And tho no condition had been reserved, the publick good, which is the end of all government, had been sufficient to abrogate all that should tend to the contrary. As the malice of men and their inventions to do mischief increase daily, all would soon be brought under the power of the worst, if care were not taken, and opportunities embraced to find new ways of preventing it. He that should make war at this day as the best commanders did two hundred years past, would be beaten by the meanest soldier. The places then accounted impregnable are now slighted as indefensible; and if the arts of defending were not improved as well as those of assaulting, none would be able to hold out a day. Men were sent into the world rude and ignorant, and if they might not have used their natural faculties to find out that which is good for themselves, all must have been condemn'd to continue in the ignorance of our first fathers, and to make no use of their understanding to the ends for which it was given.
The bestial barbarity in which many nations, especially of Africa, America and Asia, do now live, shews what human nature is, if it be not improved by art and discipline; and if the first errors, committed through ignorance, might not be corrected, all would be obliged to continue in them, and for anything I know, we must return to the religion, manners and policy that were found in our country at Caesar's landing. To affirm this is no less than to destroy all that is commendable in the world, and to render the understanding given to men utterly useless. But if it be lawful for us by the use of that understanding to build houses, ships and forts better than our ancestors, to make such arms as are most fit for our defence, and to invent printing, with an infinite number of other arts beneficial to mankind, why have we not the same right in matters of government, upon which all others do almost absolutely depend? If men are not obliged to live in caves and hollow trees, to eat acorns, and to go naked, why should they be forever obliged to continue under the same form of government that their ancestors happened to set up in the time of their ignorance? Or if they were not so ignorant to set up one that was not good enough for the age in which they lived, why should it not be altered, when tricks are found out to turn that to the prejudice of nations, which was erected for their good? From whence should malice and wickedness gain a privilege of putting new inventions to do mischief every day into practice? and who is it that so far protects them, as to forbid good and innocent men to find new ways also of defending themselves from it? If there be any that do this, they must be such as live in the same principle; who whilst they pretend to exercise justice, provide only for the indemnity of their own crimes, and the advancement of unjust designs. They would have a right of attacking us with all the advantages of the arms now in use, and the arts which by the practice of so many ages have been wonderfully refined, whilst we should be obliged to employ no others in our just defence, than such as were known to our naked ancestors when Caesar invaded them, or to the Indians when they fell under the dominion of the Spaniards. This would be a compendious way of placing uncontroll'd iniquity in all the kingdoms of the world, and to overthrow all that deserves the name of good by the introduction of such accursed maxims. But if no man dares to acknowledge any such, except those whose acknowledgment is a discredit, we ought not to suffer them to be obliquely obtruded upon us, nor to think that God has so far abandoned us into the hands of our enemies, as not to leave us the liberty of using the same arms in our defence as they do to offend and injure us.
We shall be told, that prayers and tears were the only arms of the first
Christians, and that Christ commanded his disciples to pray for those that
persecuted them: But besides that those precepts of the most extreme lenity
do ill suit with the violent practices of those who attempt to enslave
nations, and who by alleging them do plainly shew either that they do not
extend to all Christians, or that they themselves are none whilst they
act contrary to them, they are to know, that those precepts were merely
temporary, and directed to the persons of the apostles, who were armed
only with the sword of the spirit; that the primitive Christians used prayers
and tears only no longer than whilst they had no other arms. But knowing
that by lifting themselves under the ensigns of Christianity they had not
lost the rights belonging to all mankind, when nations came to be converted,
they noway thought themselves obliged to give their enemies a certain opportunity
of destroying them, when God had put means into their hands of defending
themselves; and proceeded so far in this way, that the Christian valour
soon became no less famous and remarkable than that of the pagans. They
did with the utmost vigour defend both their civil and religious rights
against all the powers of earth and hell, who by force and fraud endeavoured
to destroy them.
It may also be observed, that Christ did not so much say this to determine the questions that might arise concerning Caesar's power; for he plainly says, that was not his work; but to put the Pharisees to silence who tempted him. According to the opinion of the Jews, that the Messiah would restore the kingdom of Israel, they thought his first work would be to throw off the Roman yoke; 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 Augustine, 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 knowledge 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 been 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: 'Tis 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 persuade 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 cognizance. 'Tis 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 Caesar, had anything to do in spiritual things. And little advantage can be taken by Christian princes from what he says concerning the Roman emperors; for he expressly declares, That the Caesars would have believed in Christ, if they had either not been necessary to the secular government, or that Christians might have been Caesars. 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 forever disarm all Christians. He proceeds to say, We cannot fight to defend our goods, having in our Baptism renounc'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 dissuades 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 acknowledge this, then no man was ever guilty of a more vile prevarication than he, who alleges 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 Caesar, 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 Caesar, 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 ourselves to publick cares, should lay them aside because the ancient Christians every hour expecting death, did not trouble themselves with them.
If Ambrose after he was a bishop, employ'd the ferocity 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 been a minister before his baptism, and seems to have had no knowledge of the Gothick polity, that within a few years grew famous by the overthrow of the Roman tyranny, and delivering the world from the yoke which it could no longer bear. And if Augustine 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 ancient 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 Augustine's words have no relation to our dispute; and that 'twere 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, does as little concern us. We have already proved their power not to have been 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 yoke that lay upon the necks of the Israelites, but he could not; and we do not find him to have been 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 Nebuchadnezzar 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 been deprived of what they had, for abusing, or rendering themselves unworthy of it; and histories afford us innumerable examples of both sorts.
But tho I shall 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 pirate may have power; but that avails him not, when, as often befell the Caesars, 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 everyone will desire
to exalt them. Let them acknowledge 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 Caesars, nor the tributes due to them. We have nothing
to do with the name of Caesar. They who at this day live under it, reject
the prerogatives anciently 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 ourselves. 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 garrisons, without
which the poor and abject life they led could not have been preserved.
We owe none but what we freely give. None is or can be imposed upon us,
unless by ourselves. 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
entire, with the best laws they could devise to defend it. 'Tis 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 persuade, and the justice of the cause encourage us to think
nothing too dear to be hazarded in the defence of it.
His next work is to go back again to the tribute paid by Christ to Caesar, 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 been 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 been many usurpers who were not conquerors,
and conquerors that deserved not the name of usurpers. No wise man ever
said that Agathocles or Dionysius conquer'd Syracuse; Tarquin, Galba or
Otho, Rome; Cromwell, 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 Canaanites;
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.
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 shah 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 been misled in these things, and given the name of virtue to vice, and of vice to virtue, then Germanicus, Valerius Asiaticus, Corbulo, Helvidius Priscus, Thrasea, 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, Vinius, 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 employment of their power to the encouragement 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, does 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 Paul's meaning, Peter who was directed by the same spirit, says distinctly, Submit yourselves 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 Turkey 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 joining 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 instituted 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 loquens; 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 been 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 rendering 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 examine 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 been 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 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 judge 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 foot 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 'tis 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 persuading, 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 rendering 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 anything 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 myself 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. Offa acknowledged that he was chosen for the defence 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 been 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. Canute 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 Hardicanute with an offer of the crown, which he accepted, and accordingly was received. Edward the Confessor was elected king with the consent of the clergy 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 ancient 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 conferred than had been enjoy'd by the ancient 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 acknowledge 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 feared than William the Norman, or his predecessors, it must not be, as has been 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, 'tis 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 been cropp'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 been 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 does 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 owes to his
father, master, or the magistrate, it does 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 Caesar that which is Caesar's. If he define the magistrate to be
the minister of God doing justice, and from thence draws the reasons he
gives for rendering obedience to him, we are to inquire whose minister
he is who overthrows it, and look for some other reason for rendering obedience
to him than the words of the apostles. If David, who was willing to lay
down his life for the people, who hated iniquity, and would not
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 life, 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 forever. Every magistrate, and every man by his works, will
forever 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 been and are laws that are neither
just nor commendable. There was a law in Rome, that no god should be worshipped
without the consent of the senate: Upon which Tertullian says scoffingly,
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
of the emperors (in other respects excellent men) most foully polluted
themselves and their government with innocent blood. Antoninus Pius was
taken in this snare; and Tertullian bitterly derides Trajan for glorying
in his clemency, when he had commanded Pliny, who was proconsul in Asia,
not to make any search for Christians, but only to punish them according
to law when they should be brought before him. No municipal law can be
more firmly established by human authority, than that of the Inquisition
in Spain, and other places: And those accursed tribunals, which have shed
more Christian blood than all the pagans that ever were in the world, is
commonly called The Holy Office. If a gentleman in Poland kill a
peasant, he is by a law now in use free from punishment, if he lay a ducat
upon the dead body. Evenus the third, king of Scotland, caused a law to
pass, by which the wives and daughters of noblemen were exposed to his
lust, and those of the commons to the lust of the nobility. These, and
an infinite number of others like to them, were not right sanctions, but
such as have produced unspeakable mischiefs and calamities. They were not
therefore laws: The name of justice is abusively attributed to them: Those
that govern by them cannot be the ministers of God: and the Apostle commanding
our obedience to the minister of God for our good, commands us not to be
obedient to the minister of the Devil to our hurt; for we cannot serve
Whether he be the minister of God to our good, a protector of good, and a terror to ill men; or the minister of the Devil to our hurt, by encouraging all manner of evil, and endeavouring by vice and corruption to make the people worse, that they may be miserable, and miserable that they may be worse. I dare not say I shall never fear such a man if he be armed with power: But I am sure I shall never esteem him to be the minister of God, and shall think I do ill if I fear him. If he has therefore a coercive power over me, 'tis through my weakness; for he that will suffer himself to be compell'd, knows not how to die. If therefore he who does not follow the directive power of the law, be not the minister of God, he is not a king, at least not such a king as the Apostle commands us to obey: And if that sanction which is not just be not a law, and can have no obligation upon us, by what power soever it be established, it may well fall out, that the magistrate who will not follow the directive power of the law, may fall under the coercive, and then the fear is turned upon him, with this aggravation, that it is not only actual, but just. This was the case of Nero; the coercive power was no longer in him, but against him. He that was forced to fly and to hide himself, that was abandoned by all men, and condemned to die according to ancient custom, did, as I suppose, fear, and was no way to be feared. The like may be said of Amaziah king of Judah, when he fled to Lachish; of Nebuchadnezzar, when he was driven from the society of men; and of many emperors and kings of the greatest nations in the world, who have been so utterly deprived of all power, that they have been imprisoned, deposed, confined to monasteries, kill'd, drawn through the streets, cut in pieces, thrown into rivers, and indeed suffer'd all that could be suffer'd by the vilest slaves.
If any man say these things ought not to have been done, an answer may
be given in a proper place; though 'twere enough to say, that the justice
of the world is not to be overthrown by a mere assertion without proof;
but that is nothing to the present question: For if it was ill done to
drive Nero to despair, or to throw Vitellius into the common shore, it
was not because they were the ministers of God; for their lives were no
way conformable to the character which the Apostle gives to those who deserve
that sacred name. If those only are to be feared who have the power, there
was a time when they were not to be feared, for they had none; and if those
princes are not obliged by the law, who are not under the coercive power,
it gave no exemption to those, for they fell under it: and as we know not
what will befall others who walk in their steps, till they are dead, we
cannot till then know whether they are free from it or not.
But tho the apostles had looked upon the officers set over the provinces
belonging to the Roman empire, as sent by kings, I desire to know whether
it can be imagined, that they could think the subordinate governors to
be sent by kings, in the countries that had no kings; or that obedience
became due to the magistrates in Greece, Italy, or other provinces under
the jurisdiction of Rome, only after they had emperors, and that none was
due to them before? The Germans had then no king: The brave Arminius had
been lately kill'd for aiming at a crown. When he had blemish'd all his
virtues by that attempt, they forgot his former services. They never consider'd
how many Roman legions he had cut in pieces, nor how many thousands of
their allies he had destroy'd. His valour was a crime deserving death,
when he sought to make a prey of his country, which he had so bravely defended,
and to enslave those who with him had fought for the publick liberty. But
if the apostles were to be understood to give the name of God's ministers
only to kings, and those who are employ'd by them, and that obedience is
due to no other, a domestick tyrant had been their greatest benefactor.
He had set up the only government that is authorized by God, and to which
a conscientious obedience is due. Agathocles, Dionysius, Phalaris, Phaereus,
Pisistratus, Nabis, Machanidas, and an infinite number of the most detestable
villains that the world has ever produced, did confer the same benefits
upon the 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 determine such questions as might arise
concerning any one man's 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 often annexed to magistracies
that differ in name. The same power which had been in the Roman kings,
was given to the consuls; and that which had been legally in the dictators
for a time not exceeding six months, was afterwards usurped by the Caesars,
and made perpetual. The supreme power (which some pretend belongs to all
kings) has been 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, Aragon, 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,
'tis 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 rendered 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, mogul, or grand signor; or the number
go under the name of senate, council, pregadi, diet, assembly of estates
and the like, 'tis 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.
If any man say, that Filmer does 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 does not often produce such as I mentioned, it must also be acknowledged in them; and that power which is left to the wise, 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, Thrasea, 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 been guilty of this error, as the kingdoms of the East, and the ancient 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 been 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 entrusted 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 been wise and good kings; but they had not an absolute power, nor would have accepted it, tho it had been 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 been 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, 'tis 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 man's 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 fury 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. 'Tis 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 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 'tis 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 'tis 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 been 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.
'Tis 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 alleged 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 of the
people, who still retained in themselves the power of changing both the
matter and the form of their government, as appears by their instituting
and abrogating kings, consuls, dictators, tribunes 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
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, does 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 does 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 forever remain in the family they set up as was never known to 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 been the cause for which laws are made; and they cannot be the signification of their will, but are that to which the prince owes 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 been. And the breach of his oath does not only bring a blemish upon their reputation, but exposes them to capital punishments, as many of them have found. 'Tis 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 ancient 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 been 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, goes 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 tribune during that of Q. Fabius Maximus, all which I have cited already, and refer 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, does 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 remembered, that having affirmed the people could not judge of the disputes that might happen between them and kings, because they must not be judges in their own case, 'tis absurd to make a king judge 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 judge 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 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 be 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 villainies, that we do not hear of any man that offer'd to defend himself, or woman that presumed to refuse them. If they had been judges in these cases, the utmost of all villainies and mischiefs had been 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 been 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 anything 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 judge whether
the end be accomplished. A physician does 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 if I find him to be negligent,
ignorant, or unfaithful; and it would be ridiculous for him to say, I make
myself judge in my own case, for I only, or such as I shall consult, am
fit to be the judge 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, 'tis 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 judge, 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 judge perversely,
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 anything
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 been 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 been 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.
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 ancient 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 anything 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 'tis not to be imagined that there should be such a pestilent evil in any ancient 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 for the most part the capacity of doing it rightly. 'Tis 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 incapable of doing well, are drawn out of the right way by the subtlety 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. 'Tis void of desire and fear, lust and anger. 'Tis mens sine affectu, written reason, retaining some measure of the divine perfection. It does 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. 'Tis 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 man's 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.
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 'tis 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 'tis 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 does 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, 'tis easily seen whether he is to judge 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. 'Tis ordinarily said in France, il faut que chacun soit servi a sa mode; Every man's business must be done according to his own mind: and if this be true in particular persons, 'tis 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, 'tis 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 judge of other men's 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 (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 judge 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.
'Tis 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, 'tis almost impossible for him to avoid the snares that will be laid to 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 Machiavelli 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, 'tis 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 does 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 follow their own humours, or the suggestions of those who second them. Tiberius hearkened 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, 'tis not for want of fresher 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 been found false, and what desperate mischiefs have been brought upon the world as often as they have been practiced, 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 been 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 a commonwealths-man as Cato; but the washed swine will return to the mire. He overthrows all by a preposterous conjunction of the rights of kings which are just and by law, with those of tyrants which are utterly against law; and gives the sacred and gentle name of 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 Tamerlane 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 'tis 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 Jehoram, the prosecution of it is a strange way of becoming the son of the person destroyed. And Filmer alone is subtle 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 Canaanites: but 'tis not so easily decided, to which of them he did owe that deference; for the same could not be due to all, and 'tis 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, Caesar, and generally all those who subvert the liberties of their own country. And if they stood obliged to look upon the former magistrates as their predecessors, and to confirm their acts, the first should have been to give impunity and reward to any that would kill them, it having been a fundamental maxim in those states, that any man might kill a tyrant .
This being in all respects ridiculous and absurd, 'tis 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 been 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 persuading 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
Magna Charta being only an abridgment of our ancient 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 determine what is good or evil, fit to be observed or annulled in it, can have no more power over the rest. This having been 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 'tis 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 despised. Tho the pope's excommunications proved sometimes to be but bruta fulmina, when a just cause was wanting, it may be easily judged what obedience a prince could expect from his subjects, when every man knew he had by perjury drawn the most heavy curses upon himself. King John was certainly wicked, but he durst not break these bonds till he had procured the pope's absolution for a cover; and when he had done so, he found himself unsafe under it, and could not make good what he had promised to the pope to obtain it, the parliament declaring that his grants to the pope were unjust, illegal, contrary to his coronation-oath, and that they would not be held by them. This went so far in that king's time, that writs were issued out to men of all conditions to oblige themselves by oath to keep the Great Charter; and if other means failed, to compel the king to perform the conditions. 'Tis expressly said in his charter, "That the barons and commonalty of the land shall straighten and compel us by all means possible, as by seizing our towns, lands, and possessions, or any other way, till satisfaction be made according to their pleasure." And in the charter of his son Henry, 'tis, upon the same supposition of not performing the agreement, said, "It shall be lawful for all men in our kingdom to rise up against us, and to do all things that may be grievous to us, as if they were absolutely free from any engagements to our person." These words seem to have been contrived to be so full and strong propter duplicitatem regis. which was with too much reason suspected. And 'tis not, as I suppose, the language of slaves and villains begging something from their lord, but of noble and free men, who knew their lord was no more than what they made him, and had nothing but what they gave him: nor the language of a lord treating with such as enjoy'd their liberties by his favour, but with those whom he acknowledged to be the judges of his performing what had been stipulated; and equals the agreements made between the kings and people of Aragon, which I cited before from the Relations of Antonio Perez. This is as far as men can go; and the experience of all ages manifests, that princes performing their office, and observing these stipulations, have lived glorious, happy and beloved: and I can hardly find an example of any who have notoriously broken these oaths, and been adjudged to have incurred the penalties, who have not lived miserably, died shamefully, and left an abominable memory to posterity.
"But, says our author, kings cannot be more obliged by voluntary oaths than other men, and may be relieved from unjust and unreasonable promises, if they be induced by deceit, error, force or fear, or the performance be grievous." Which is to say, that no oath is of any obligation: for there is none that is not voluntary or involuntary, and there never was any upon which some such thing may not be pretended, which would be the same if such as Filmer had the direction of their consciences who take the oaths, and of those who are to exact the performance. This would soon destroy all confidence between king and people, and not only unhinge the best established governments, but by a detestable practice of annihilating the force of oaths and most solemn contracts that can be made by men, overthrow all societies that subsist by them. I leave it to all reasonable men to judge how fit a work this would be for the supreme magistrate, who is advanced to the highest degree of human glory and happiness, that he may preserve them; and how that justice, for the obtaining of which governments are constituted, can be administered, if he who is to exact it from others, do in his own person utterly subvert it; and what they deserve, who by such base prevarications would teach them to pervert and abolish the most sacred of all contracts. A worthy person of our age was accustomed to say that contracts in writing were invented only to bind villains, who having no law, justice or truth within themselves, would not keep their words, unless such testimonies were given as might compel them. But if our author's doctrine were received, no contract would be of more value than a cobweb. Such as are not absolutely of a profligate conscience, so far reverence the religion of an oath, to think that even those which are most unjustly and violently imposed ought to be observed; and Julius Caesar, who I think was not over-scrupulous, when he was taken by pirates, and set at liberty upon his word, caused the ransom he had promised to be pay'd to them. We see the like is practiced every day by prisoners taken in unjust as well as just wars: And there is no honest man that would not abhor a person, who being taken by the pirates of Algiers should not pay what he had promised for his liberty. 'Twere in vain to say they had no right of exacting, or that the performance was grievous; he must return to the chains, or pay. And tho the people of Artois, Alsace, or Flanders, do perhaps with reason think the king of France has no right to impose oaths of allegiance upon them, no man doubts, that if they chuse rather to take those oaths, than to suffer what might ensue upon their refusal, they are as much bound to be faithful to him as his ancient subjects.
The like may be said of promises extorted by fraud; and no other example is necessary to prove they are to be performed than that of Joshua made to the Gibeonites. They were an accursed nation, which he was commanded to destroy: They came to him with lies, and by deceit induced him to make a league with them, which he ought not to have done; but being made, it was to be performed; and on that account he did not only spare but defend them, and the action was approved by God. When Saul by a preposterous zeal violated that league, the anger of God for that breach of faith could no otherwise be appeased than by the death of seven of his children. This case is so full, so precise, and of such undoubted authority, that I shall not trouble myself with any other. But if we believe our man of good morals, voluntary oaths and promises are of no more value than those gained by force or deceit, that is to say, none are of any. For voluntary signifying nothing but free, all human acts are either free or not free, that is, from the will of the person, or some impulse from without. If therefore there be no force in those that are free, nor in those that are not free, there is none in any.
No better use can be made of any pretension of error, or that the performance was grievous; for no man ought to be grieved at the performance of his contract. David assures us, that a good man performs his agreement tho he 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 allege; nor anything 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 'tis 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 been 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 ancient laws, especially those that had been 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 mentis, 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 relics of St. Alban, which he needed not to have done, but might have departed to his duchy of Normandy if he had not lik'd the conditions, or thought not fit to observe them. 'Tis 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 been 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 a 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 been 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 anything we know, the English nation was not then so contemptible but men might have been 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 ancient, 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 manor 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 acknowledge 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 anything but a new law made by ourselves,
can exempt our kings from the obligation of performing their oaths taken,
to govern according to the old, in the true sense of the words, as they
are understood in our language by those who give them, and conducing to
the ends for which they are given, which can be no other than to defend
us from all manner of arbitrary power, and to fix a rule to which we are
to conform our actions, and from which, according to our deserts, we may
expect reward or punishment. And those who by prevarications, cavils or
equivocations, endeavour to dissolve these obligations, do either maliciously
betray the cause of kings, by representing them to the world as men who
prefer the satisfaction of their irregular appetites before the performance
of their duty, and trample under foot the most sacred bonds of human society;
or from the grossest ignorance do not see, that by teaching nations how
little they can rely upon the oaths of their princes, they instruct them
as little to observe their own; and that not only because men are generally
inclined to follow the examples of those in power, but from a most certain
conclusion, that he who breaks his part of a contract cannot without the
utmost impudence and folly expect the performance of the other; nothing
being more known amongst men, than that all contracts are of such mutual
obligation, that he who fails of his part discharges the other. If this
be so between man and man, it must needs be so between one and many millions
of men: If he were free, because he says he is, every man must be free
also when he pleases; if a private man who receives no benefit, or perhaps
prejudice from a contract, be obliged to perform the conditions, much more
are kings who receive the greatest advantages the world can give. As they
are not by themselves nor for themselves, so they are not different in
specie from other men: they are born, live and die as we all do. The
same law of truth and justice is given to all by God and nature, and perhaps
I may say the performance of it is most rigorously exacted from the greatest
of men. The liberty of perjury cannot be a privilege annexed to crowns;
and 'tis absurd to think that the most venerable authority that can be
conferred upon a man, is increased by a liberty to commit, or impunity
in committing such crimes as are the greatest aggravations of infamy to
the basest villains in the world.
I think I may be excused if I make these scruples, because I find the thing in dispute to be variously adjudged in several places, and have observed five different manners of disposing crowns esteemed hereditary, besides an infinite number of collateral controversies arising from them, of which we have divers examples; and if there be one universal rule appointed, one of these only can be right, and all the others must be vicious. The first gives the inheritance to the eldest male of the eldest legitimate line, as in France, according to that which they call the Salic Law. The second, to the eldest legitimate male of the reigning family, as anciently in Spain, according to which the brother of the deceased king has been often, if not always preferr'd before the son, if he were elder, as may appear by the dispute between Corbis and Orsua, cited before from Titus Livius; and in the same country during the reign of the Goths, the eldest male succeeded, whether legitimate or illegitimate. The fourth receives females or their descendants, without any other condition distinguishing them from males, except that the younger brother is preferr'd before the elder sister, but the daughter of the elder brother is preferr'd before the son of the younger. The fifth gives the inheritance to females under a condition, as in Sweden, where they inherit, unless they marry out of the country without the consent of the estates; according to which rule Charles Gustavus was chosen, as any stranger might have been, tho son to a sister of Gustavus Adolphus, who by marrying a German prince had forfeited her right. And by the same act of estates, by which her eldest son was chosen, and the crown entailed upon the heirs of his body, her second son the prince Adolphus was wholly excluded.
Till these questions are decided by a judge of such an undoubted authority, that all men may safely submit, 'tis hard for any man who really seeks the satisfaction of his conscience, to know whether the law of God and nature (tho he should believe there is one general law) do justify the customs of the ancient Medes and Sabeans, mentioned by the poet, who admitted females, or those of France which totally exclude them as unfit to reign over men, and utterly unable to perform the duty of a supreme magistrate, as we see they are everywhere excluded from the exercise of all other offices in the commonwealth. If it be said that we ought to follow the customs of our own country, I answer, that those of our own country deserve to be observed, because they are of our own country: But they are no more to be called the laws of God and nature than those of France or Germany; and tho I do not believe that any general law is appointed, I wish I were sure that our customs in this point were not more repugnant to the light of nature, and prejudicial to ourselves, than those of some other nations: But if I should be so much an Englishman, to think the will of God to have been more particularly revealed to our ancestors, than to any other nation, and that all of them ought to learn from us; yet it would be difficult to decide many questions that may arise. For tho the parliament in the 36th of Henry the sixth, made an act in favour of Richard duke of York, descended from a daughter of Mortimer, who married the daughter of the duke of Clarence, elder brother to John of Gaunt, they rather asserted their own power of giving the crown to whom they pleased, than determined the question. For if they had believed that the crown had belonged to him by a general and eternal law, they must immediately have rejected Henry as a usurper, and put Richard into the possession of his right, which they did not. And tho they did something like to this in the cases of Maud the empress in relation 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 1st, Stephen, John, Richard the 3d, Henry the 7th, Mary, Elizabeth, and others. So that, for anything I can yet find, 'tis 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, 'tis 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 Lorraine, 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 Japheth, 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 been 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 foul, 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 Sobieski 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 'tis 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 descendants, came to the Germans; who having created several emperors of the houses of Swabia, Saxony, Bavaria and others, as they pleased, about three hundred years past chose Rudolph 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 descendants 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 been 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 anything I know, was only denounced against Ham: and 'tis as hard to determine whether the sense of it be temporal, spiritual, or both, as to tell precisely what nations by being only descended from him, fall under the penalties threatened.
If these therefore be either entirely 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 Salic 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 persuade 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 Balthi or Amalthi 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 swoon, 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 Asturias, which increasing by degrees at last came to comprehend all Spain, and so continues to this day: But not troubling myself with all the deviations from the common rule in the collateral lines of Navarre, Aragon and Portugal, I find that by fifteen several instances in that one series of kings in the Asturias and Leon (who afterwards came to be kings of Castile) 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, persuaded 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, Alfonso surnamed the Chaste was advanced to the crown, and they all laid aside. Fruela son to Alfonso 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 wife's sister, was preferr'd before the males of the blood royal. Alfonso, surnamed 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 Alfonso 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 Alfonso, and made him king. Alfonso dying without issue, Don Ramiro son to Bermudo was preferred before the nephews of Alfonso. Don Ordoño, 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 Alfonso the fourth, who was his nephew. Alfonso turning monk, recommended his son Ordoño to the estates of the kingdom; but they refused him, and made his brother Ramiro king. Ordoño 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 Augustus king of France, and Berengaria married to Alfonso king of Leon. The estates made Ferdinand, son of Berengaria the youngest sister, king, excluding Blanche, with her husband and children for being strangers, and Berengaria herself, because they thought not fit that her husband should have any part in the government. Alfonso El Savio seems to have been 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 Alfonso and Ferdinand very young, the nobility, clergy and people deposed him, excluded his grandchildren, and gave the crown to Don Sancho his younger son, surnamed El Bravo, thinking him more fit to command them against the Moors, than an old astrologer, or a child. Alfonso and Sancho being dead, Alfonso El Desheredado laid claim to the crown, but it was given to Ferdinand the Fourth, and Alfonso with his descendants the dukes de Medina Celi remain excluded to this day. Peter surnamed the Cruel was twice driven out of the kingdom, and at last killed by Bertrand de Guesclin constable of France, or Henry count of Trastamara his bastard-brother, who was made king without any regard to the daughters of Peter, or to the house of La Cerda. Henry the Fourth left a daughter called Joan, whom he declared his heir; but the estates gave the kingdom to Isabel his sister, and crowned her with Ferdinand of Aragon her husband. Joan daughter to this Ferdinand and Isabel falling mad, the estates committed the care of the government to her father Ferdinand, and after his death to Charles her son.
But the French have taught us, that when a king dies, his next heir is really king before he take his oath, or be crowned. From them we learn that le mort saisit le vif. And yet I know no history that proves more plainly than theirs, that there neither is nor can be in any man, a right to the government of a people, which does not receive its being, manner and measure from the law of that country; which I hope to justify by four reasons.
1. When a king of Pharamond's race died, the kingdom was divided into as many parcels as he had sons; which could not have been, if one certain heir had been assigned by nature, for he ought to have had the whole: and if the kingdom might be divided, they who inhabited the several parcels, could not know to whom they owed obedience, till the division was made, unless he who was to be king of Paris, Metz, Soissons or Orleans, had worn the name of his kingdom upon his forehead. But in truth, if there might be a division, the doctrine is false, and there was no lord of the whole. This wound will not be healed by saying, the father appointed the division, and that by the law of nature every man may dispose of his own as he thinks fit; for we shall soon prove that the kingdom of France neither was, nor is disposable as a patrimony or chattel. Besides, if that act of kings had been then grounded upon the law of nature, they might do the like at this day. But the law, by which such divisions were made, having been abrogated by the assembly of estates in the time of Hugh Capet, and never practised since, it follows that they were grounded upon a temporary law, and not upon the law of nature which is eternal. If this were not so, the pretended certainty could not be; for no man could know to whom the last king had bequeathed the whole kingdom, or parcels of it, till the will were opened; and that must be done before such witnesses as may deserve credit in a matter of this importance, and are able to judge whether the bequest be rightly made; for otherwise no man could know, whether the kingdom was to have one lord or many, nor who he or they were to be; which intermission must necessarily subvert their polity, and this doctrine. But the truth is, the most monarchical men among them are so far from acknowledging any such right to be in the king, of alienating, bequeathing or dividing the kingdom, that they do not allow him the right of making a will; and that of the last King Lewis the 13th touching the regency during the minority of his son was of no effect.
2. This matter was made more clear under the second race. If a lord had been assigned to them by nature, he must have been of the royal family: But Pepin had no other title to the crown except the merits of his father, and his own, approved by the nobility and people who made him king. He had three sons, the eldest was made king of Italy, and dying before him left a son called Bernard heir of that kingdom. The estates of France divided what remained between Charles the Great and Carloman. The last of these dying in few years left many sons, but the nobility made Charles king of all France, and he dispossessed Bernard of the kingdom of Italy inherited from his father: so that he also was not king of the whole, before the expulsion of Bernard the son of his elder brother; nor of Aquitaine, which by inheritance should have belonged to the children of his younger brother, any otherwise than by the will of the estates. Lewis the Debonair succeeded upon the same title, was deposed and put into a monastery by his three sons Lothair, Pepin and Lewis, whom he had by his first wife. But tho these left many sons, the kingdom came to Charles the Bald. The nobility and people disliking the eldest son of Charles, gave the kingdom to Lewis le Begue, who had a legitimate son called Charles le Simple; and two bastards, Lewis and Carloman, who were made kings. Carloman had a son called Lewis le Faineant; he was made king, but afterwards deposed for his vicious life. Charles le Gros succeeded him, but for his ill government was also deposed; and Eudes, who was a stranger to the royal blood, was made king. The same nobility that had made five kings since Lewis le Begue, now made Charles le Simple king, who according to his name, was entrapped at Peronne by Rudolph duke of Burgundy, and forced to resign his crown, leaving only a son called Lewis, who fled into England. Rudolph being dead; they took Lewis surnamed Outremer, and placed him in the throne: he had two sons, Lothair and Charles. Lothair succeeded him, and died without issue. Charles had as fair a title as could be by birth, and the estates confessed it; but their ambassadors told him, that he having by an unworthy life render'd himself unworthy of the crown, they, whose principal care was to have a good prince at the head of them, had chosen Hugh Capet; and the crown continues in his race to this day, tho not altogether without interruption. Robert son to Hugh Capet succeeded him. He left two sons Robert and Henry; but Henry the younger son appearing to the estates of the kingdom to be more fit to reign than his elder brother, they made him king, Robert and his descendants continuing dukes of Burgundy only for about ten generations, at which time his issue male failing, that duchy returned to the crown during the life of King John, who gave it to his second son Philip for an apanage still depending upon the crown. The same province of Burgundy was by the Treaty of Madrid granted to the emperor Charles the fifth, by Francis the first: but the people refused to be alienated, and the estates of the kingdom approved their refusal. By the same authority Charles the 6th was removed from the government, when he appeared to be mad; and other examples of a like nature may be alleged. 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 been horribly confused during the reigns of 22 kings of Pharamond's 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 Lorraine 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 been 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. 'Twere 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 knowledge. 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 Navarre, 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 demesnes 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 Belloy, calculated for the personal interest of Henry the fourth then king of Navarre 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 Belloy 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 been 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 Belloy does by virtue of one that is established.
4. In the last place. As Belloy acknowledges that the right belongs to princes only where 'tis established by law, I deny that there is, was, or ever can be any such. No people is known to have been 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 been 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 suits 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 everyone 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 anything 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 descendants, does 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 myself
with feigned cases, that of legitimation alone will suffice. 'Tis 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 Castile, 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 been begotten by him; and the only title that Isabel, who was married
to Ferdinand of Aragon 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 been, 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 been 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
been often accused of supposititious births: and men's 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 judge of such disputes as may in these cases arise in every kingdom;
and tho 'tis not my business to determine who is that judge in all places,
yet I may justly say, that in England it is the Parliament. If no inferior
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 Swynford, with a
proviso, not to extend to the inheritance of the crown. Others might say,
if they were lawfully begotten, they ought to inherit everything, 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 been
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 been a bastard; and it had been 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 been of a temper different from those of other nations: and many examples
may be brought of the like occasions of dispute happening everywhere; and
the like will probably be forever; 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
Some may perhaps think that the endeavours of our author to introduce such accursed principles, as tend to the ruin of mankind, proceed from his ignorance. But tho he appears to have had a great measure of that quality, I fear the evil proceeds from a deeper root; and that he attempts to promote the interests of ill magistrates, who make it their business to destroy all good principles in the people, with as much industry as the good endeavour to preserve them where they are, and teach them where they are wanting. Reason and experience instruct us, that every man acts according to the end he proposes to himself. The good magistrate seeks the good of the people committed to his care, that he may perform the end of his institution: and knowing that chiefly to consist in justice and virtue, he endeavours to plant and propagate them; and by doing this he procures his own good as well as that of the publick. He knows there is no safety where there is no strength, no strength without union, no union with[out] justice; no justice where faith and truth, in accomplishing publick and private contracts, is wanting. This he perpetually inculcates, and thinks it a great part of his duty, by precept and example, to educate the youth in a love of virtue and truth, that they may be seasoned with them, and filled with an abhorrence of vice and falsehood, before they attain that age which is exposed to the most violent temptations, and in which they may by their crimes bring the greatest mischiefs upon the publick. He would do all this, tho it were to his own prejudice. But as good actions always carry a reward with them, these contribute in a high measure to his advantage. By preferring the interest of the people before his own, he gains their affection, and all that is in their power comes with it; whilst he unites them to one another, he unites all to himself: In leading them to virtue, he increases their strength, and by that means provides for his own safety, glory and power.
On the other side, such as seek different ends must take different ways. When a magistrate fancies he is not made for the people, but the people for him; that he does not govern for them, but for himself; and that the people live only to increase his glory, or furnish matter for his pleasures, he does not inquire what he may do for them, but what he may draw from them. By this means he sets up an interest of profit, pleasure or pomp in himself, repugnant to the good of the publick for which he is made to be what he is. These contrary ends certainly divide the nation into parties; and whilst everyone endeavours to advance that to which he is addicted, occasions of hatred for injuries every day done, or thought to be done and received, must necessarily arise. This creates a most fierce and irreconcilable enmity, because the occasions are frequent, important and universal, and the causes thought to be most just. The people think it the greatest of all crimes, to convert that power to their hurt, which was instituted for their good; and that the injustice is aggravated by perjury and ingratitude, which comprehend all manner of ill; and the magistrate gives the name of sedition or rebellion to whatsoever they do for the preservation of themselves and their own rights. When men's spirits are thus prepared, a small matter sets them on fire; but if no accident happen to blow them into a flame, the course of justice is certainly interrupted, the publick affairs are neglected; and when any occasion whether foreign or domestick arises, in which the magistrate stands in need of the people's assistance, they, whose affections are alienated, not only shew an unwillingness to serve him with their persons and estates, but fear that by delivering him from his distress they strengthen their enemy, and enable him to oppress them: and he fancying his will to be unjustly opposed, or his due more unjustly denied, is filled with a dislike of what he sees, and a fear of worse for the future. Whilst he endeavours to ease himself of the one, and to provide against the other, he usually increases the evils of both, and jealousies are on both sides multiplied. Every man knows that the governed are in a great measure under the power of the governor; but as no man, or number of men, is willingly subject to those who seek their ruin, such as fall into so great a misfortune, continue no longer under it than force, fear, or necessity may be able to oblige them. But as such a necessity can hardly lie longer upon a great people, than till the evil be fully discovered and comprehended, and their virtue, strength and power be united to expel it; the ill magistrate looks upon all things that may conduce to that end, as so many preparatives to his ruin; and by the help of those who are of his party, will endeavour to prevent that union, and diminish that strength, virtue, power and courage, which he knows to be bent against him. And as truth, faithful dealing, due performance of contracts, and integrity of manners, are bonds of union, and helps to good, he will always by tricks, artifices, cavils, and all means possible endeavour to establish falsehood and dishonesty; whilst other emissaries and instruments of iniquity, by corrupting the youth, and seducing such as can be brought to lewdness and debauchery, bring the people to such a pass, that they may neither care nor dare to vindicate their rights, and that those who would do it, may so far suspect each other, as not to confer upon, much less to join in any action tending to the publick deliverance.
This distinguishes the good from the bad magistrate, the faithful from
the unfaithful; and those who adhere to either, living in the same principle,
must walk in the same ways. They who uphold the rightful power of a just
magistracy, encourage virtue and justice, teach men what they ought to
do, suffer, or expect from others; fix them upon principles of honesty,
and generally advance everything that tends to the increase of the valour,
strength, greatness and happiness of the nation, creating a good union
among them, and bringing every man to an exact understanding of his own
and the publick rights. On the other side, he that would introduce an ill
magistrate; make one evil who was good, or preserve him in the exercise
of injustice when he is corrupted, must always open the way for him by
vitiating the people, corrupting their manners, destroying the validity
of oaths and contracts, teaching such evasions, equivocations and frauds,
as are inconsistent with the thoughts that become men of virtue and courage;
and overthrowing the confidence they ought to have in each other, make
it impossible for them to unite among themselves. The like arts must be
used with the magistrate: He cannot be for their turn, till he is persuaded
to believe he has no dependence upon, and owes no duty to the people; that
he is of himself, and not by their institution; that no man ought to inquire
into, nor be judge of his actions; that all obedience is due to him, whether
he be good or bad, wise or foolish, a father or an enemy to his country.
This being calculated for his personal interest, he must pursue the same
designs, or his kingdom is divided within itself, and cannot subsist. By
this means those who flatter his humour, come to be accounted his friends,
and the only men that are thought worthy of great trusts, whilst such as
are of another mind are exposed to all persecution. These are always such
as excel in virtue, wisdom, and greatness of spirit: they have eyes, and
they will always see the way they go; and leaving fools to be guided by
implicit faith, will distinguish between good and evil, and chuse that
which is best; they will judge of men by their actions, and by them discovering
whose servant every man is, know whether he is to be obeyed or not. Those
who are ignorant of all good, careless or enemies to it, take a more compendious
way; their slavish, vicious and base natures inclining them to seek only
private and present advantages, they easily slide into a blind dependence
upon one who has wealth and power; and desiring only to know his will,
care not what injustice they do, if they may be rewarded. They worship
what they find in the temple, tho it be the vilest of idols, and always
like that best which is worst, because it agrees with their inclinations
and principles. When a party comes to be erected upon such a foundation,
debauchery, lewdness and dishonesty are the true badges of it. Such as
wear them are cherished; but the principal marks of favour are reserved
for those who are the most industrious in mischief, either by seducing
the people with the allurements of sensual pleasures, or corrupting their
understandings by false and slavish doctrines. By this means a man who
calls himself a philosopher or a divine, is often more useful than a great
number of tapsters, cooks, buffoons, players, fiddlers whores or bawds.
These are the Devil's ministers of a lower order; they seduce single persons,
and such as fall into their snares are for the most part men of the simpler
sort: but the principal supporters of his kingdom, are they, who by false
doctrines poison the springs of religion and virtue, and by preaching or
writing (if their falsehood and wickedness were not detected) would extinguish
all principles of common honesty, and bring whole nations to be best satisfied
with themselves, when their actions are most abominable. And as the means
must always be suitable to the end proposed, the governments that are to
be established or supported by such ways must needs be the worst of all,
and comprehend all manner of evil.
To prove what he says, he cites a pertinent example from St. Luke, and very logically concludes, that because Christ reproved the hypocrisy of the Pharisees (who generally adhered to the external and circumstantial part of the law, neglecting the essential, and taking upon themselves to be the interpreters of that which they did not understand), the law of God is not to be obeyed: and as strongly proves, that because Christ shewed them that the same law, which by their own confession permitted them to pull an ass out of a pit on the sabbath day, could not but give a liberty of healing the sick, therefore the commands of kings are to be obeyed, tho they should be contrary to human and divine laws. But if perverseness had not blinded him, he might have seen, that this very text is wholly against his purpose; for the magistratical power was on the side of the Pharisees, otherwise they would not have sought an occasion to ensnare him; and that power having perverted the law of God by false glosses, and a superinduction of human traditions, prohibited the most necessary acts of charity to be done on the sabbath day, which Christ reproved, and restored the sick man to his health in their sight.
But I could wish our author had told us the names of those divines, who, he says, are the best, and who pretend to teach us these fine things. I know some who are thought good, that are of a contrary opinion, and say that God having required that day to be set apart for his service and worship, man cannot dispense with the obligation, unless he can abrogate the 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 Heylyn has been 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 Caesar, 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.
'Tis 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, 'tis 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 been a sin to disobey their commands;
and God would not have punished them so severely, if they had not sinned.
'Tis 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 allege 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
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 sovereign 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 acknowledge 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 judge 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 judge 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 people's 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 consulate together, as if before that time they had never enjoyed any; and Julius Caesar 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 Caesar 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 Florentines, who complain of slavery under the house of Medici, 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 myself 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 does 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 been a handsome compliment, 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 preferr'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 amongst men, that there are few examples of the contrary. And as 'tis folly to suppose that princes will always be wise, just and good, when we know that few have been 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: Tho Moses, Joshua and Samuel had been 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 sovereign power, as he did them whom he chose for the works he designed? Or what testimony can Filmer give us, that he has been present with all those who have hitherto reigned in the world? But if we know that no such thing either is, or has been; and can find no promise to assure us, nor reason to hope that it ever will be, 'tis 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 fig trees 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 been 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 been 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 preferr'd before strength, glory, plenty, security and happiness. The state of the Roman empire after the usurpation of Caesar will set this matter in the clearest light; but having done it already in the former parts of this work, I content myself 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 been under an absolute power, which does 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 been 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 administered, 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 acknowledge.
But what is this sovereign 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, Nebuchadnezzar 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 been 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 sovereign majesty, that Filmer affirms to be so essential to kings, that without it they are only equivocal; which proving nothing but the incurable perverseness of his judgment, the malice of his heart, or malignity of his fate, always to oppose reason and truth, we are to esteem those to be kings who are 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 been 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 been in the world simple monarchies, aristocracies or democracies legally established, 'tis certain that the most part of the governments of the world (and I think all that are or have been good) were mixed. Part of the power has been conferr'd upon the king, or the magistrate that represented him, and part upon the senate and people, as has been 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 basileus: they must therefore have a right of regulating the power of kings, as well as that of consuls or dictators; and it had not been 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 'tis 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 anything 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 it skills not how he come by the power . Violence therefore or fraud, treachery or murder, are as good as election, donation or legal succession. 'Tis 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 been 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 been 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 does 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, vicious,
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 battle 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 been thought
to be the most detestable, are the most commendable and glorious. But not
troubling myself 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 acknowledge
himself bound by them.
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 Politicks, adds, That when something falls out besides the general rule, then it is jit 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 does 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 itself (in relation to England) does so far acknowledge 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 future parliaments to judge what other facts equivalent to them may deserve the same punishment: and 'tis 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, 'tis 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 does 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 been 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 been 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 judge 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 injuries 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 employ 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 queen's 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.
Pardons 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 does enable him; the Parliament that has the power of making laws, may entirely 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 acknowledge 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 does not speak of England, which acknowledges no other law than its
own; and instead of receiving any from kings, does to this day obey none,
but such as have been made by our ancestors, or ourselves, 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
If any man should think Aristotle a trifler, for speaking of such a man as can never be found, I answer, that he went as far as his way could be warranted by reason or nature, and was obliged to stop there by the defect of his subject. He could not say that the government of one was simply good, when he knew so many qualifications were required in the person to make it so; nor that it is good for a nation to be under the power of a fool, a coward, or a villain, because 'tis good to be under a man of admirable wisdom, valour, industry and goodness; or that the government of one should be continued in such as by chance succeed in a family, because it was given to the first who had all the virtues required, tho all the reasons for which the power was given fail in the successor; much less could he say that any government was good, which was not good for those whose good only it was constituted to promote.
Moreover, by shewing who only is fit to be a monarch, or may be made
such, without violating the laws of nature and justice, he shews who cannot
be one: and he who says that no such man is to be found, as according to
the opinion of Aristotle can be a monarch, does most ridiculously allege
his authority in favour of monarchs, or the power which some amongst us
would attribute to them. If anything therefore may be concluded from his
words, 'tis this, that since no power ought to be admitted which is not
just; that none can be just which is not good, profitable to the people,
and conducing to the ends for which it is constituted; that no man can
know how to direct the power to those ends, can deserve, or administer
it, unless he do so far excel all those that are under him in wisdom, justice,
valour and goodness, as to possess more of those virtues than all of them:
I say, if no such man or succession of men be found, no such power is to
be granted to any man, or succession of men. But if such power be granted,
the laws of nature and reason are overthrown, and the ends for which societies
are constituted, utterly perverted, which necessarily implies an annihilation
of the grant. And if a grant so made by those who have a right of setting
up a government among themselves, do perish through its own natural iniquity
and perversity, I leave it to any man, whose understanding and manners
are not so entirely corrupted as those of our author, to determine what
name ought to be given to that person, who not excelling all others in
civil and moral virtues, in the proportion requir'd by Aristotle, does
usurp a power over a nation, and what obedience the people owe to such
a one. But if his opinion deserve our regard, the king by having those
virtues is omnium optimus, and the best guide to the people, to
lead them to happiness by the ways of virtue. And he who assumes the
same power, without the qualifications requir'd, is tyrannus omnium
pessimus, leading the people to all manner of ill, and in consequence
1. First, that there was a power to make kings before there was any king.
2. Tho kings had been the first created magistrates in all places (as perhaps they were in some) it does not follow, that they must continue forever, 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 been king. He could not be king by succession, for the Scripture shews him to have been the first. He was not king by the right of father, for he was not their father, Cush, Ham, 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 been king over all by the right of nature (if there had been 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 been any; and Nimrod could never have been 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. 'Tis 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 forces must be stronger than that which is forced; and if it be true, according to the ancient saying, that Hercules himself is not sufficient to encounter two, 'tis sure more impossible for one man to force a multitude, for that must be stronger than he. If he came in by persuasion, they who were persuaded, were persuaded 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 anything 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 been conferred upon him reverted to the people, who according to that right, chose Numa, Hostilius, Marcius, 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 abolished 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 been 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 'tis 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 Caesar 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 afterwards 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, than 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 been 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 been called proconsul, praetor, 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, 'tis 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 for themselves, that without regard to the memory of those who had gone before, 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 been 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 been governed by kings, it were nothing to the question; for 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 been a rule given by God, and written in the minds of men by nature, it must have been from the beginning, universal and perpetual; or at least must have been 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 'tis 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 been 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 forever 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 ancient. A wise architect may shew his skill, and deserve commendation for 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 fluctuation, 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 ancient 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 ancient, as that which is best, and 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, 'tis 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 itself, 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 been 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 judge 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, Turkey, 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. 'Tis as easily determined, whether the Grecians when Athens and Thebes flourished were more free than the Medes; whether justice was better administered 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 Nebuchadnezzar and Caligula, for worshipping their statues; our acts of Parliament against hereticks and Lollards, with the statutes and orders of the Inquisition 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 alleged, 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 found. 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 itself 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 divest 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, does, 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 suits 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 Peloponnesus, who are accustomed to the most abject slavery. It may easily be imagined, how the Romans, Sabines 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 been 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 been set up in Rome immediately upon the building of the city; and if that fierce people which was composed of unruly shepherds, herdsmen, fugitive slaves, and outlaw'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 confusion: whereas that boisterous humour being gradually temper'd by discipline under Romulus, or taught to vent its fury 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, 'tis as lawful for the descendants 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 been 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 been 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 suited 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 been enlarged or altered, if the perfection had been simple; and no better evidence can be given to shew that it was not so, than that God did afterwards 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 been otherwise, the apostles would have obliged Christians to the entire 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 Sanhedrin of seventy men chosen out of the whole people, are to judge 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 sovereign majesty that our author adores, and agrees as little with his maxims, as a tribune 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 ourselves 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 judge what conduces to that end, than they were. If they in any age
had been persuaded 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 been 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 rendered
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 encourage us,
never to suffer them to be violated or diminished.
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 troublesome; 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 rendered 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 anything 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 everything 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 does 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 conferred 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 knowledge 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 incapable, 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 been 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 Morocco. Nay, the ambassador who was lately here from that place, denied that they were absolutely in him. However 'tis 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 judge and were judged; and the judgments they gave were in and with the Sanhedrin. In England the kings do not judge, 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 'tis 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, and the verdict is from them, tho the judges having heard the point argued, declare the sense of the law thereupon. Wherefore if I should grant that the king might personally assist in judgments, his work could only be to prevent frauds, and by the advice of the judges to see that the laws be duly executed, or perhaps to inspect their behaviour. If he has more than this, it must be by virtue of his politick capacity, in which he is understood to be always present in the principal courts, where justice is always done whether he who wears the crown be young or old, wise or ignorant, good or bad, or whether he like or dislike what is done.
Moreover, as governments are instituted for the obtaining of justice, and the king is in a great measure entrusted with the power of executing it, 'tis probable that the law would have required his presence in the distribution, if there had been but one court; that at the same time he could be present in more than one; that it were certain he would be guilty of no miscarriages; that all miscarriages were to be punished in him as well as in the judges; or that it were certain he should always be a man of such wisdom, industry, experience and integrity as to be an assistance to, and a watch over those who are appointed for the administration of justice. But there being many courts sitting at the same time of equal authority, in several places far distant from each other; impossible for the king to be present in all; no manner of assurance that the same or greater miscarriages may not be committed in his presence than in his absence, by himself than others; no opportunity of punishing every delict in him, without bringing the nation into such disorder, as may be of more prejudice to the publick than an injury done to a private man; the law which intends to obviate offences, or to punish such as cannot be obviated, has directed, that those men should be chosen who are most knowing in it, imposes an oath upon them, not to be diverted from the due course of justice by fear or favour, hopes or reward, particularly by any command from the king; and appoints the severest punishments for them if they prove false to God and their country.
If any man think that the words cited from Bracton by our author upon the question, Quis primo & principaliter possit & debeat judicare , &c. Sciendum est quod rex & non alius, si solus ad haec sufficere possit; cum ad hoc per virtutem sacramenti teneatur, are contrary to what I have said, I desire the context may be considered, that his opinion may be truly understood, tho the words taken simply and nakedly may be enough for my purpose. For 'tis ridiculous to infer that the king has a right of doing anything, upon a supposition that 'tis impossible for him to do it. He therefore who says the king cannot do it, says it must be done by others, or not at all. But having already proved that the king, merely as king, has none of the qualities required for judging all or any cases, and that many kings have all the defects of age and person that render men most unable and unfit to give any sentence, we may conclude, without contradicting Bracton, that no king as king, has a power of judging, because some of them are utterly unable and unfit to do it; and if anyone has such a power, it must be conferr'd upon him by those who think him able and fit to perform that work. When Filmer finds such a man, we must inquire into the extent of that power which is given to him; but this would be nothing to his general proposition, for he himself would hardly have inferr'd, that because a power of judging in some cases was conferred upon one prince on account of his fitness and ability, therefore all of them, however unfit and unable, have a power of deciding all cases. Besides, if he believe Bracton, this power of judging is not inherent in the king, but incumbent upon him by virtue of his oath, which our author endeavours to enervate and annul. But as that oath is grounded upon the law, and the law cannot presume impossibilities and absurdities, it cannot intend, and the oath cannot require, that a man should do that which he is unable and unfit to do. Many kings are unfit to judge causes, the law cannot therefore intend they should do it. The context also shews, that this imagination of the king's judging all causes, if he could, is merely chimerical: for Bracton says in the same chapter, that the power of the king is the power of the law; that is, that he has no power but by the law. And the law that aims at justice, cannot make it to depend upon the uncertain humour of a child, a woman, or a foolish man; for by that means it would destroy itself. The law cannot therefore give any such power, and the king cannot have it.
If it be said that all kings are not so; that some are of mature age, wise, just and good; or that the question is not what is good for the subject, but what is glorious to the king, and that he must not lose his right tho the people perish; I answer, first, that whatsoever belongs to kings as kings, belongs to all kings: this power of judging cannot belong to all for the reasons above mentioned: it cannot therefore belong to any as king, nor without madness be granted to any, till he has given testimony of such wisdom, experience, diligence and goodness, as is required for so great a work. It imports not what his ancestors were; virtues are not entail'd; and it were less improper for the heirs of Hales and Harvey, to pretend that the clients and patients of their ancestors should depend upon their advice in matters of law and physick, than for the heirs of a great and wise prince to pretend to powers given on account of virtue, if they have not the same talents for the performance of the works required.
Common sense declares, that governments are instituted, and judicatures erected for the obtaining of justice. The king's bench was not established that the chief justice should have a great office, but that the oppressed should be relieved, and right done. The honor and profit he receives, comes in as it were by accident, as the rewards of his service; if he rightly perform his duty: but he may as well pretend he is there for his own sake, as the king. God did not set up Moses or Joshua, that they might glory in having six hundred thousand men under their command, but that they might lead the people into the land they were to possess: that is, they were not for themselves but for the people; and the glory they acquir'd was by rightly performing the end of their institution. Even our author is obliged to confess this, when he says, that the king's prerogative is instituted for the good of those that are under it. 'Tis 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 anyone 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 been 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 'tis 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, be does unjustly, and becomes the vicegerent of the Devil; for he is the minister of him whose works he does. 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 been 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 been 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 battles of Pharsalia and Philippi: The carcasses of their senators, not ours, were exposed to the wolves and vultures: 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 been 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 persuade us to put an extraordinary value upon what passed among them, we ought rather to examine 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 ancient 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 been 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 been made to oppress them by force, they ought to be no less careful to preserve them from the more dangerous efforts of fraud and falsehood.
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 subtlety 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 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 entirely 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 been in his hand.
This is farther evidenced by what passed in the Tower between Sir Thomas
More and Rich the king's solicitor, who asking, if it would not be treason
to oppose Richard Rich, if the parliament should make him king, More 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? 'Tis evident
that a man of the acuteness and learning of Sir Tho. More 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 been 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.
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 uncontrollable power, may be justly thought equal in madness to our author, who by forbidding us to examine the titles of kings, and enjoining an entire 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 been observed that the worst are always most ready to use it; and their extravagances having been 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 does by art obliquely elude, confesses he has not a right absolutely to refuse. 'Tis natural to kings, especially to the worst, to screw 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 been 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 been regulated by the statute of the 17 Car. I. 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 acknowledge 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 been found always to prosper who have given it to those from whom usurpations were least to be feared, who have been 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 senate of twenty eight; in Venice to that which they call Concilio de Pregadi; in Germany, Spain, France, Sweden, Denmark, Poland, Hungary, Bohemia, Scotland, England, and generally all the nations that have lived under the Gothick polity, it has been in their general assemblies, under the names of diets, cortes, parliaments, senates, and the like. But in what hands soever it is, the power of making, abrogating, changing, correcting and interpreting laws, has been in the same; kings have been 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 been put to that
trouble, because the senates 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 Witiza
and Rodrigo exposed the kingdom as a prey to the Moors, rather by weakening
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 'tis the cause of our present difficulties, and threatens us with more,
but can never deprive us of the rights we inherit from our fathers.
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 entirely 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 of grace and favour from that king: but adds, that it had been more for the honour of parliaments, if a king whose title to the crown had been better, had been the author of the form of it.
In answer to the first, I do not think myself 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, praetors and tribunes, 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 itself (tho men are unwilling to change that which has pleased their ancestors, unless they discover great inconveniences in it) that which a people does 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 been, as what is good and ought to be; for that which of itself 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 been instituted by themselves, from the time they were first known in the world.
The Britains and Saxons lay so long hid in the obscurity that accompanies barbarism, that 'tis in vain to seek what was done by either in any writers more ancient than Caesar and Tacitus. The first describes the Britains to have been 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 Caratacus, 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 chiefly 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 of Caesar, it seems to have been 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 been 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.
'Tis as easily proved that the Saxons or Angles, 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 Angles; describes their habitation near the Elbe, 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 Heligoland; 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 person, or a few were delegated by many. For they who have a right inherent in themselves, may resign it to others; and they who can give a power to others, may exercise it themselves, unless they recede from it by their own act; for it is only matter of convenience, of which they alone can be the judges, because 'tis for themselves only that they judge. If this were not so, it would be very prejudicial to kings: for 'tis certain that Cassivellaunus, Caratacus, Arviragus, Galgacus, Hengist, Horsa, and others amongst the Britains and Saxons, what name soever may have been abusively given to them, were only temporary magistrates chosen upon occasion of present wars; but we know of no time in which the Britains had not their great council to determine their most important affairs: and the Saxons in their own country had their councils, where all were present, and in which Tacitus assures us they dispatched their greatest business. These were the same with the micklegemotes which they afterwards held here, and might have been called by the same name, if Tacitus had spoken Dutch.
If a people therefore have not a power to create at any time a magistracy which they had not before, none could be created at all, for no magistracy is eternal: And if for the validity of the constitution it be necessary, that the beginning must be unknown, or that no other could have been before it, the monarchy amongst us cannot be established upon any right; for tho our ancestors had their councils and magistrates, as well here as in Germany, they had no monarchs. This appears plainly by the testimony of Caesar and Tacitus; and our later histories show, that as soon as the Saxons came into this country, they had their micklegemotes, which were general assemblies of the noble and free men, who had in themselves the power of the nation: and tho when they increased in numbers, they erected seven kingdoms, yet every one retained the same usage within itself. These assemblies were evidently the same in power with our parliaments; and tho they differ'd in name or form, it matters not, for they who could act in the one, could not but have a power of instituting the other; that is, the same people that could meet together in their own persons, and according to their own pleasure order all matters relating to themselves, whilst three or four counties only were under one government, and their numbers were not so great, or their habitation so far distant, that they might not meet altogether without inconvenience, with the same right might depute others to represent them, when being joined in one, no place was capable of receiving so great a multitude, and that the frontiers would have been exposed to the danger of foreign invasions, if any such thing had been practiced.
But if the authority of parliaments, for many ages representing the whole nation, were less to be valued (as our author insinuates) because they could not represent the whole, when it was not joined in one body, that of kings must come to nothing; for there could be no one king over all, when the nation was divided into seven distinct governments: And 'tis most absurd to think that the nation, which had seven great councils, or micklegemotes, at the same time they had seven kingdoms, could not as well unite the seven councils as the seven kingdoms into one. 'Tis to as little purpose to say, that the nation did not unite itself, but the several parcels came to be inherited by one; for that one could inherit no more from the others than what they had; and the seven being only magistrates set up by the micklegemotes, &c. the one must be so also. And 'tis neither reasonable to imagine, nor possible to prove, that a fierce nation, jealous of liberty, and who had obstinately defended it in Germany against all invaders, should conquer this country to enslave themselves, and purchase nothing by their valour but that servitude which they abhorred; or be less free when they were united into one state, than they had been when they were divided into seven; and least of all, that one man could first subdue his own people, and then all the rest, when by endeavouring to subdue his own, he had broken the trust reposed in him, and lost the right conferred upon him, and without them had not power to subdue any. But as it is my fate almost ever to dissent from our author, I affirm, that the variety of government, which is observed to have been amongst the Saxons, who in some ages were divided, in others united; sometimes under captains, in other times under kings; sometimes meeting personally in the micklegemotes, sometimes by their delegates in the witenagemotes, does evidently testify, that they ordered all things according to their own pleasure; which being the utmost act of liberty, it remained inviolable under all those changes, as we have already proved by the confession of Offa, Ine, Alfred, Canute, Edward, and other particular, as well as universal kings: And we may be sure those of the Norman race can have no more power, since they came in by the same way, and swore to govern by the same laws.
2. I am no way concerned in our author's doubt, Whether parliaments did in those days consist of nobility and clergy; or whether the commons were also called. For if it were true, as he asserts, that according to the eternal law of God and nature, there can be no government in the world but that of an absolute monarch, whose sovereign majesty can be diminished by no law or custom, there could be no parliaments, or other magistracies, that did not derive their power and being from his will. But having proved that the Saxons had their general councils and assemblies when they had no kings; that by them kings were made, and the greatest affairs determined, whether they had kings or not; it can be of no importance, whether in one or more ages the commons had a part in the government, or not. For the same power that instituted a parliament without them, might, when they thought fit, receive them into it: or rather, if they who had the government in their hands, did, for reasons known to themselves, recede from the exercise of it, they might resume it when they pleased.
Nevertheless it may be worth our pains to enquire, what our author means by nobility. If such, as at this day by means of patents obtained for money, or by favour, without any regard to merit in the persons or their ancestors, are called dukes, marquesses, &c. I give him leave to impute as late and base an original to them as he pleases, without fearing that the rights of our nation can thereby be impaired; and am content, that if the king do not think fit to support the dignity of his own creatures, they may fall to the ground. But if by noblemen we are to understand such as have been ennobled by the virtues of their ancestors, manifested in services done to their country, I say, that all nations, amongst whom virtue has been esteemed, have had a great regard to them and their posterity: And tho kings, when they were made, have been 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 ancient than such; for it had been equally impossible to take kings (according to Tacitus) out of the nobility if there had been no nobility, as to take captains for their virtue if there had been 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 referred 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 been placed in the nobility; and no better defence has been 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, Sweden, 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 been 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 ancient 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-de, 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 ancient 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 ancient 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 Caesar 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 conferred 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 ancient 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 ancient 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 witenagemote, 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 witenagemote was, according to William of Malmesbury, The general meeting of the senate and people; and Sir Harry Spelman calls it, The general council of the clergy and people . In the assembly at Calchuth 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, Ine, and others, were made kings; and Alfred in his will acknowledged his crown from them. Edgar was elected by all the people, and not long after deposed by them, and again restored in a general assembly. These things being sometimes said to be done by the assent of the barons of the kingdom, Camden says, that under the name of the baronage, all the orders of the kingdom are in a manner comprehended; and it cannot be otherwise understood, if we consider that those called noblemen, or the nobility of England, are often by the historians said to be ( infinita multitudo) an infinite multitude.
If any man ask how the nobility came to be so numerous; I answer, that the Northern nations, who were perpetually in arms, put a high esteem upon military valour; sought by conquest to acquire better countries than their own; valu'd themselves according to the numbers of men they could bring into the field; and to distinguish them from villains, called those noblemen, who nobly defended and enlarged their dominions by war; and for a reward of their services, in the division of lands gained by conquest, they distributed to them freeholds, under the obligation of continuing the same service to their country. This appears by the name of knight's service, a knight being no more than a soldier, and a knight's fee no more than was sufficient to maintain one. 'Tis plain, that knighthood was always esteemed nobility; so that no man, of what quality soever, thought a knight inferior to him, and those of the highest birth could not act as noblemen till they were knighted. Among the Goths in Spain, the cutting off the hair (which being long was the mark of knighthood) was accounted [as] degrading, and looked upon to be so great a mark of infamy, that he who had suffer'd it, could never bear any honor or office in the commonwealth; and there was no dignity so high, but every knight was capable of it. There was no distinction of men above it, and even to this day baron, or varon, in their language, signifies no more than vir in Latin, which is not properly given to any man unless he be free. The like was in France, till the coming in of the third race of kings, in which time the 12 peers (of whom 6 only were laymen) were raised to a higher dignity, and the commands annexed made hereditary; but the honour of knighthood was thereby no way diminished. Tho there were dukes, earls, marquesses and barons in the time of Froissart, yet he usually calls them knights: And Philippe de Comines, speaking of the most eminent men of his time, calls them good, wise or valiant knights. Even to this day the name of gentleman comprehends all that is raised above the common people; Henry the fourth usually called himself the first gentleman in France; and 'tis an ordinary phrase among them, when they speak of a gentleman of good birth, to say, il est noble comme le roy; He is as noble as the king. In their general assembly of estates, the Chamber of the Noblesse, which is one of three, is composed of the deputies sent by the gentry of every province; and in the inquiry made about the year 1668 concerning nobility, no notice was taken of such as had assumed the titles of earl, marquess, viscount, or baron, but only of those who called themselves gentlemen; and if they could prove that name to belong to them, they were left to use the other titles as they pleased. When duels were in fashion (as all know they were lately) no man except the princes of the blood, and marshals of France, could with honour refuse a challenge from any gentleman: The first, because it was thought unfit, that he who might be king, should fight with a subject to the danger of the commonwealth, which might by that means be deprived of its head: The others being by their office commanders of the nobility, and judges of all the controversies relating to honour that happen amongst them, cannot reasonably be brought into private contests with any. In Denmark, nobleman and gentleman is the same thing; and till the year 1660, they had the principal part of the government in their hands. When Charles Gustavus, king of Sweden, invaded Poland in the year 1655, 'tis said, that there were above three hundred thousand gentlemen in arms to resist him. This is the nobility of that country, kings are chosen by them: Every one of them will say, as in France, He is noble as the king. The last king was a private man among them, not thought to have had more than four hundred pounds a year. He who now reigns was not at all above him in birth or estate, till he had raised himself by great services done for his country in many wars; and there was not one gentleman in the nation who might not have been chosen as well as he, if it had pleased the assembly that did it.
This being the nobility of the Northern nations, and the true baronage of England, 'tis no wonder that they were called nobiles; the most eminent among them magnates, principes, proceres; and so numerous that they were esteemed to be multitudo infinita. One place was hardly able to contain them; and the inconveniences of calling them all together appeared to be so great, that they in time chose rather to meet by representatives, than every one in his own person. The power therefore remaining in them, it matters not what method they observed in the execution. They who had the substance in their hands, might give it what form they pleased. Our author sufficiently manifests his ignorance, in saying there could be no knights of the shires in the time of the Saxons, because there were no shires; for the very word is Saxon, and we find the names of Berkshire, Wiltshire, Devonshire, Dorsetshire, and others most frequently in the writings of those times; and dukes, earls, thanes or aldermen, appointed to command the forces, and look to the distribution of justice in them. Selden cites Ingulph for saying, that Alfred was the first that changed the provinces, &c. into counties: but refutes him, and proves that the distinction of the land into shires or counties (for shire signified no more than the share or part committed to the care of the earl or comes) was far more ancient. Whether the first divisions by the Saxons were greater or lesser than the shires or counties now are, is nothing to the question: they who made them to be as they were, could have made them greater or lesser as they pleased. And whether they did immediately, or some ages after that distinction, cease to come to their great assemblies, and rather chuse to send their deputies, or, whether such deputies were chosen by counties, cities and boroughs, as in our days, or in any other manner, can be of no advantage or prejudice to the cause that I maintain. If the power of the nation, when it was divided into seven kingdoms, or united under one, did reside in the micklegemotes or witenagemotes; if these consisted of the nobility and people, who were sometimes so numerous that no one place could well contain them; and if the preference given to the chief among them, was on account of the offices they executed, either in relation to war or justice, which no man can deny, I have as much as serves for my purpose. 'Tis indifferent to me, whether they were called earls, dukes, aldermen, herotoghs or thanes; for 'tis certain that the titular nobility now in mode amongst us has no resemblance to this ancient nobility of England. The novelty therefore is on the other side, and that of the worst sort; because by giving the name of noblemen (which anciently belonged to such as had the greatest interests in nations, and were the supporters of their liberty) to court-creatures, who often have none, and either acquire their honours by money, or are preferr'd for servile and sometimes impure services render'd to the person that reigns, or else for mischiefs done to their country, the constitution has been wholly inverted, and the trust reposed in the kings (who in some measure had the disposal of offices and honours) misemploy'd. This is farther aggravated by appropriating the name of noblemen solely to them; whereas the nation having been anciently divided only into freemen or noblemen (who were the same) and villains; the first were, as Tacitus says of their ancestors the Germans, exempted from burdens and contributions, and reserved like arms for the uses of war, whilst the others were little better than slaves, appointed to cultivate the lands, or to other servile offices. And I leave any reasonable man to judge, whether the latter condition be that of those we now call commoners. Nevertheless, he that will believe the title of noblemen still to belong to those only who are so by patent, may guess how well our wars would be managed if they were left solely to such as are so by that title. If this be approved, his majesty may do well with his hundred and fifty noblemen, eminent in valour and military experience as they are known to be, to make such wars as may fall upon him, and leave the despised commons under the name of villains, to provide for themselves if the success do not answer his expectations. But if the commons are as free as the nobles, many of them in birth equal to the patentees, in estate superior to most of them; and that it is not only expected they should assist him in wars with their persons and purses, but acknowledged by all, that the strength and virtue of the nation is in them, it must be confess'd, that they are true noblemen of England, and that all the privileges anciently enjoy'd by such, must necessarily belong to them, since they perform the offices to which they were annexed. This shews how the nobility were justly said to be almost infinite in number, so that no one place was able to contain them. The Saxon armies that came over into this country to a wholesome and generative climate, might well increase in four or five ages to those vast numbers, as the Franks, Goths and others had done in Spain, France, Italy, and other parts: and when they were grown so numerous, they found themselves necessarily obliged to put the power into the hands of representatives chosen by themselves, which they had before exercised in their own persons. But these two ways differing rather in form than essentially, the one tending to democracy, the other to aristocracy, they are equally opposite to the absolute dominion of one man reigning for himself, and governing the nation as his patrimony; and equally assert the rights of the people to put the government into such a form as best pleases themselves. This was suitable to what they had practised in their own country; De minoribus consultant principes, de majoribus omnes. Nay, even these smaller matters cannot be said properly to relate to the king; for he is but one, and the word principes is in the plural number, and can only signify such principal men, as the same author says were chosen by the general assemblies to do justice, &c. and to each of them one hundred comites joined, not only to give advice, but authority to their actions.
The word omnes spoken by a Roman, must likewise be understood as it was used by them, and imports all the citizens, or such as made up the body of the commonwealth. If he had spoken of Rome or Athens whilst they remained free, he must have used the same word (because all those of whom the city consisted had votes) how great soever the number of slaves or strangers might have been. The Spartans are rightly said to have gained, lost and recovered the lordship or principality of Greece. They were all lords in relation to their helots, and so were the Dorians in relation to that sort of men, which under several names they kept, as the Saxons did their villains, for the performance of the offices which they thought too mean for those who were ennobled by liberty, and the use of arms, by which the commonwealth was defended and enlarged. Tho the Romans scorned to give the title of lord to those who had usurped a power over their lives and fortunes; yet every one of them was a lord in relation to his own servants, and altogether are often called lords of the world: the like is seen almost everywhere. The government of Venice having continued for many ages in the same families, has ennobled them all. No phrase is more common in Switzerland, than the lords of Bern, or the lords of Zurich and other places, tho perhaps there is not a man amongst them who pretends to be a gentleman, according to the modern sense put upon that word. The states of the United Provinces are called high and mighty lords, and the same title is given to each of them in particular. Nay, the word Herr, which signifies lord both in high and low Dutch, is as common as monsieur in France, signor in Italy, or señor in Spain; and is given to everyone who is not of a sordid condition, but especially to soldiers: and tho a common soldier be now a much meaner thing than it was anciently, no man speaking to a company of soldiers in Italian, uses any other stile than signori soldati; and the like is done in other languages. 'Tis not therefore to be thought strange, if the Saxons, who in their own country had scorned any other employment than that of the sword, should think themselves farther ennobled, when by their arms they had acquired a great and rich country, and driven out or subdued the former inhabitants. They might well distinguish themselves from the villains they brought with them, or the Britains they had enslaved. They might well be called magnates, proceres regni, nobiles, Angliae nobilitas, barones ; and the assemblies of them justly called concilium regni generale, universitas totius Angliae nobilium, universitas baronagii, according to the variety of times and other occurrences. We have such footsteps remaining of the name of baron, as plainly shew the signification of it. The barons of London and the Cinque Ports are known to be only the freemen of those places. In the petty court-barons, every man who may be of a jury is a baron. These are noblemen; for there are noble nations as well as noble men in nations. The Mamelukes accounted themselves to be all noble, tho born slaves; and when they had ennobled themselves by the use of arms, they look'd upon the noblest of the Egyptians as their slaves. Tertullian writing, not to some eminent men, but to the whole people of Carthage, calls them antiquitate nobiles, nobilitate felices. Such were the Saxons, ennobled by a perpetual application to those exercises that belong to noblemen, and an abhorrence to anything that is vile and sordid.
Lest this should seem far fetch'd, to those who please themselves with
cavilling, they are to know, that the same general councils are expressed
by other authors in other words. They are called the general council
of the bishops, noblemen, counts, all the wise men, elders, and people
of the whole kingdom, in the time of Ine. In that of Edward the elder,
great council of the bishops, abbots, noblemen and people. William
of Malmesbury calls them, the general senate and assembly of the people.
Sometimes they are in short called clergy and people; but all express
the same power, neither received from, nor limitable by kings, who are
always said to be chosen or made, and sometimes deposed by them. William
the Norman found, and left the nation in this condition: Henry the second,
John and Henry third, who had nothing but what was conferred upon them
by the same clergy and people, did so too. Magna Charta could give
nothing to the people, who in themselves had all; and only reduced into
a small volume the rights which the nation was resolved to maintain; brought
the king to confess, they were perpetually inherent, and time out of mind
enjoyed, and to swear that he would no way violate them; if he did, he
was ipso facto excommunicated; and being thereby declared to be
an execrable perjur'd person, they knew how to deal with him. This act
has been confirmed by thirty parliaments; and the proceedings with kings,
who have violated their oaths, as well before as after the time of Henry
the third, which have been already mentioned, are sufficient to shew, that
England has always been governed by itself, and never acknowledged any
other lord than such as they thought fit to set up.
In order to this 'tis hardly worth the pains to search into the obscure remains of the British histories: For when the Romans deserted our island, they did not confer the right they had (whether more or less) upon any man, but left the enjoyment of it to the poor remainders of the nation, and their own established colonies, who were grown to be one people with the natives. The Saxons came under the conduct of Hengist and Horsa, who seem to have been sturdy pirates; but did not (that I can learn) bear any characters in their persons of the so much admired sovereign majesty, that should give them an absolute dominion or propriety, either in their own country, or any other they should set their feet upon. They came with about a hundred men; and chusing rather to serve Vortigern, than to depend upon what they could get by rapine at sea, lived upon a small proportion of land by him allotted to them. Tho this seems to be but a slender encouragement, yet it was enough to invite many others to follow their example and fortune; so that their number increasing, the county of Kent was given to them, under the obligation of serving the Britains in their wars. Not long after, lands in Northumberland were bestowed upon another company of them with the same condition. This was all the title they had to what they enjoyed, till they treacherously killed four hundred and sixty, or, as William of Malmesbury says, three hundred principal men of the British nobility, and made Vortigern prisoner, who had been so much their benefactor, that he seems never to have deserved well but from them, and to have incens'd the Britains by the favour he shew'd them, as much as by the worst of his vices. And certainly actions of this kind, composed of falsehood and cruelty, can never create a right, in the opinion of any better men than Filmer and his disciples, who think that the power only is to be regarded, and not the means by which it is obtained. But tho it should be granted that a right had been thus acquired, it must accrue to the nation, not to Hengist and Horsa. If such an acquisition be called a conquest, the benefit must belong to those that conquer'd. This was not the work of two men; and those who had been 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 'tis no way probable, that they who in their own country had kept their princes within very narrow limits, as has been 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 been 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 'tis 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 been 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 been 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 anything, I may grant that manors, &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 somebody, 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, avoyer 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; for 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, does 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 Nebuchadnezzar, Cyrus, Darius and Ahasuerus recited in Scripture, with others that we hear of daily from those parts: but wheresoever there is anything 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 a 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 (for that concerns only those who do it or suffer it) but whether he can oblige the people; and 'tis 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 confers 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 'tis
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 been 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 demesnes 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 been annulled; even those who had bought
lands of the crown have been called to account, and the sums given being
compared with the profits received, and a moderate interest allowed to
the purchasers, so much of the principal as remained due to them has been
repay'd, and the lands resumed.
But if there is such a thing as a usurper, and a rule by which men may judge of usurpation, 'tis not only lawful but necessary for us to examine the titles of such as go under the name of kings, that we may know whether they are truly so or not, lest through ignorance we chance to give the veneration and obedience that is due to a king, to one who is not a king, and deny it to him, who by an uninterruptible line of descent is our natural lord, and thereby prefer the worst of men and our most bitter enemy before the person we ought to look upon as our father: and if this prove dangerous to one or more kings, 'tis our author's fault, not mine.
If there be no usurper, nor rule of distinguishing him from a lawful prince, Filmer is the worst of all triflers and impostors, who grounds his arguments in the most serious matters upon what he esteems to be false: but the truth is, he seems to have set himself against humanity and common sense, as much as against law and virtue; and if he who so frequently contradicts himself, can be said to mean anything, he would authorize rapine and murder, and persuade us to account those to be rightful kings, who by treachery and other unjust means overthrow the right of descent which he pretends to esteem sacred, as well as the liberties of nations, which by better judges are thought to be so, and gives the odious name of usurpation to the advancement of one who is made king by the consent of a willing people.
But if Henry the First were a usurper, I desire to know whether the same name belongs to all our kings, or which of them deserves a better, that we may understand whose acts ought to be reputed legal, and to whose descent we owe veneration, or whether we are wholly exempted from all: for I cannot see a possibility of fixing the guilt of usurpation upon Henry the First, without involving many, if not all our kings in the same.
If his title was not good because his brother Robert was still living, that of Rufus is by the same reason overthrown; and William their father being a bastard could have none. This fundamental defect could never be repair'd; for the successors could inherit no more than the right of the first, which was nothing. Stephen could deduce no title either from Norman or Saxon; whatsoever Henry the second pretended, must be from his mother Maud, and any other might have been preferred before her as well as he. If her title was from the Normans, it must be void, since they had none, and the story of Edgar Atheling is too impertinent to deserve mention. But however, it could be of no advantage to her; for David king of Scotland, brother to her mother from whom only her title could be derived, was then alive with his son Henry, who dying not long after, left three sons and three daughters, whose posterity being distributed into many families of Scotland, remains to this day; and if proximity of blood is to be consider'd, ought always to have been preferr'd before her and her descendants, unless there be a law that gives the preference to daughters before sons. What right soever Henry the second had, it must necessarily have perished with him, all his children having been begotten in manifest adultery on Eleanor of Gascony, during the life of Lewis king of France her first husband: and nothing could be alleged to colour the business, but a dispensation from the pope directly against the law of God, and the words of our Saviour, who says, That a wife cannot be put away unless for adultery, and he that marrieth her that is put away committeth adultery. The pollution of this spring is not to be cured; but tho it should pass unregarded, no one part of the succession since that time has remained entire. John was preferred before Arthur his elder brother's son: Edward the third was made king by the deposition of his father: Henry the fourth by that of Richard the 2d. If the house of Mortimer or York had the right, Henry the 4th, 5th, and 6th, were not kings, and all who claim under them have no title. However, Richard the third could have none; for the children of his elder brother the duke of Clarence were then living. The children of Edward the fourth may be suspected of bastardy; and tho it may have been otherwise, yet that matter is not so clear as things of such importance ought to be, and the consequence may reach very far. But tho that scruple were removed, 'tis certain that Henry the 7th was not king in the right of his wife Elizabeth, for he reigned before and after her; and for his other titles, we may believe Philippe de Comines, who says, He had neither cross nor pile. If Henry the eighth had a right in himself, or from his mother, he should have reigned immediately after her death, which he never pretended, nor to succeed till his father was dead, thereby acknowledging he had no right but from him, unless the parliament and people can give it. The like may be said of his children. Mary could have no title if she was a bastard, begotten in incest; but if her mother's marriage was good and she legitimate, Elizabeth could have none.
Yet all these were lawful kings and queens; their acts continue in force to this day to all intents and purposes: the parliament and people made them to be so, when they had no other title. The parliament and people therefore have the power of making kings: Those who are so made are not usurpers: We have had none but such for more than seven hundred years. They were therefore lawful kings, or this nation has had none in all that time; and if our author like this conclusion, the account from whence it is drawn may without difficulty be carried as high as our English histories do reach.
This being built upon the steady foundation of law, history and reason,
is not to be removed by any man's opinion; especially by one accompanied
with such circumstances as Sir Walter Raleigh was in during the last years
of his life: And there is something of baseness, as well as prevarication,
in turning the words of an eminent person, reduced to great difficulties,
to a sense no way agreeing with his former actions or writings, and no
less tending to impair his reputation than to deceive others. Our author
is highly guilty of both, in citing Sir Walter Raleigh to invalidate the
Great Charter of our liberties, as begun by usurpation, and shewed to
the world by rebellion; whereas no such thing, nor anything like it
in word or principle can be found in the works that deserve to go under
his name. The dialogue in question, with some other small pieces published
after his death, deserve to be esteemed spurious: Or if, from a desire
of life, when he knew his head lay under the ax, he was brought to say
things no way agreeing with what he had formerly profess'd, they ought
rather to be buried in oblivion, than produced to blemish his memory. But
that the publick cause may not suffer by his fault, 'tis convenient the
world should be informed, that tho he was a well qualified gentleman, yet
his morals were no way exact, as appears by his dealings with the brave
Earl of Essex. And he was so well assisted in his History of the World
, that an ordinary man with the same helps might have perform'd the same
things. Neither ought it to be accounted strange, if that which he writ
by himself had the tincture of another spirit, when he was deprived of
that assistance, tho his life had not depended upon the will of the prince,
and he had never said, that the bonds of subjects to their kings should
always be wrought out of iron, and those of kings to their subjects out
Where governments are more exactly regulated, the power of judging when 'tis fit to call the senate or people together, is referr'd to one or more magistrates; as in Rome to the consuls or tribunes, in Athens to the archons, and in Thebes to the beotarchs: but none of them could have these powers, unless they had been given by those who advanced them to the magistracies to which they were annexed; nor could they have been 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 alleged, 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 tribunes, dictators, or decemviri: and it had been 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 'tis confessed by all the Swedish nation, that if the king now reigning should die without children, the estates would proceed to a new election.
'Tis 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 everywhere 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 descendants of Robert were only dukes of Burgundy. The like was done in Castile and Aragon, by frequently preferring the younger before the elder brother; the descendants 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 his 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 Christian 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 Balthi and Amalthi. In some, the eldest man of the reigning family was preferr'd before the nearest, as in Scotland before the time of Kenneth. 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 descendants, as in France and Turkey. In others, they or their descendants 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 Aragon, ancient Germany, the Saxon kings, the Normans, the kings of Castile, the present empire, with divers others. And I may safely say, that the ancient 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.
'Twere 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 praetorian 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 does 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, 'tis 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 free people but themselves, or those to whom they have given it.
If acquisition be pretended, 'tis 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 'tis 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 been 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 employ'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 Caesar, 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 been 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 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 Franks from
Pharamond or Meroveus, and the English from Ine 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.
1. That the most absolute princes that are or have been in the world, never had the name of king; whereas it has been frequently given to those whose powers have been very much restrained. The Caesars were never called kings, till the sixth age of Christianity: the caliphs and sultan of Egypt and Babylon, the Great Turk, the khan of Tartary, or the Great Mogul never took that name, or any other of the same signification. The czar of Muscovy 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, Aragon, Sweden, Denmark and England, who could do nothing but by law, have been 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 Caesar 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 praetors and consuls: In civil matters he was, as he pretended, content with the power of tribune; 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 been render'd odious and execrable by the violent exercise of an absolute power, are sometimes made popular by moderate limitations; as in Germany, where, tho the monarchy seem to be as well temper'd as any, the princes retain the same names of imperator, Caesar and Augustus, as those had done, who by the excess of their rage and fury had desolated and corrupted the best part of [the] world.
Sometimes the name is changed, tho the power in all respects continue to be the same. The lords of Castile 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, Muscovy and others, acknowledge no superior, as well as
those of Poland and Castile 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 Masinissa,
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 alleged. 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 Nebuchadnezzar could kill or save whom he pleased: and tho the
king of Morocco 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.
'Twill be no less difficult to bring resignation to be subservient to our author's purpose; for men could not resign their liberty, unless they naturally had it in themselves. Resignation is a publick declaration of their assent to be governed by the person to whom they resign; that is, they do by that act constitute him to be their governor. This necessarily puts us upon the inquiry, why they do resign, how they will be governed, and proves the governor to be their creature; and the right of disposing the government must be in them, or they who receive it can have none. This is so evident to common sense, that it were impertinent to ask who made Carthage, Athens, Rome or Venice to be free cities. Their charters were not from men, but from God and nature. When a number of Phoenicians had found a port on the coast of Africa, they might perhaps agree with the inhabitants for a parcel of ground, but they brought their liberty with them. When a company of Latins, Sabines and Tuscans met together upon the banks of the Tiber, and chose rather to build a city for themselves, than to live in such as were adjacent, they carried their liberty in their own breasts, and had hands and swords to defend it. This was their charter; and Romulus could confer no more upon them, than Dido upon the Carthaginians. When a multitude of barbarous nations infested Italy, and no protection could be expected from the corrupted and perishing empire, such as agreed to seek a place of refuge in the scatter'd islands of the Adriatick gulf, had no need of any man's authority to ratify the institution of their government. They who were the formal part of the city, and had built the material, could not but have a right of governing it as they pleased, since if they did amiss, the hurt was only to themselves. 'Tis probable enough that some of the Roman emperors, as lords of the soil, might have pretended to a dominion over them, if there had been any colour for it: but nothing of that kind appearing in thirteen hundred years, we are not like to hear of any such cavils. 'Tis agreed by mankind, that subjection and protection are relative; and that he who cannot protect those that are under him, in vain pretends to a dominion over them. The only ends for which governments are constituted, and obedience render'd to them, are the obtaining of justice and protection; and they who cannot provide for both, give the people a right of taking such ways as best please themselves, in order to their own safety.
The matter is yet more clear in relation to those who never were in any society, as at the beginning, or renovation of the world after the Flood; or who upon the dissolution of the societies to which they did once belong, or by some other accident have been obliged to seek new habitations. Such were those who went from Babylon upon the confusion of tongues, those who escaped from Troy when it was burnt by the Grecians; almost all the nations of Europe, with many of Asia and Africa upon the dissolution of the Roman empire. To which may be added a multitude of Northern nations, who, when they had increased to such numbers that their countries could no longer nourish them, or because they wanted skill to improve their lands, were sent out to provide for themselves; and having done so, did erect many kingdoms and states, either by themselves, or in union and coalition with the ancient inhabitants.
'Tis in vain to say, that wheresoever they came, the land did belong to somebody, and that they who came to dwell there must be subject to the laws of those who were lords of the soil, for that is not always true in fact. Some come into desert countries that have no lord, others into such as are thinly peopled, by men who knowing not how to improve their land, do either grant part of it upon easy terms to the new comers, or grow into a union with them in the enjoyment of the whole; and histories furnish us with infinite examples of this nature.
If we will look into our own original, without troubling ourselves with the senseless stories of Samothes the son of Japheth and his magicians, or the giants begotten by spirits upon the thirty daughters of Danaus sent from Phoenicia in a boat without sail, oars or rudder, we shall find that when the Romans abandoned this island, the inhabitants were left to a full liberty of providing for themselves: and whether we deduce our original from them or the Saxons, or from both, our ancestors were perfectly free; and the Normans having inherited the same right when they came to be one nation with the former, we cannot but continue so still unless we have enslaved ourselves.
Nothing is more contrary to reason than to imagine this. When the fierce barbarity of the Saxons came to be softened by a more gentle climate, the arts and religion they learnt, taught them to reform their manners, and better enabled them to frame laws for the preservation of their liberty, but no way diminished their love to it: and tho the Normans might desire to get the lands of those who had joined with Harold, and of others into their hands; yet when they were settled in the country, and by marriages united to the ancient inhabitants, they became true Englishmen, and no less lovers of liberty and resolute defenders of it than the Saxons had been. There was then neither conquering Norman nor conquered Saxon, but a great and brave people composed of both, united in blood and interest in the defence of their common rights, which they so well maintained, that no prince since that time has too violently encroached upon them, who, as the reward of his folly, has not lived miserably and died shamefully.
Such actions of our ancestors do not, as I suppose, savour much of the
submission which patrimonial slaves do usually render to the will of their
lord. On the contrary, whatsoever they did was by a power inherent in themselves
to defend that liberty in which they were born. All their kings were created
upon the same condition, and for the same ends. Alfred acknowledged he
found and left them perfectly free; and the confession of Offa, that they
had not made him king for his own merits, but for the defence of their
liberty, comprehends all that were before and after him. They well knew
how great the honour was, to be made head of a great people, and rigorously
exacted the performance of the ends for which such a one was elevated,
severely punishing those who basely and wickedly betray'd the trust reposed
in them, and violated all that is most sacred among men; which could not
have been unless they were naturally free, for the liberty that has no
being cannot be defended.
Among the Romans and Grecians we hear nothing of majesty, highness,
serenity and excellence appropriated to a single person, but receive them
from Germany and other Northern countries. We find majestas populi Romani,
majestas imperil, in their best authors; but no man speaking
to Julius or Augustus, or even to the vainest of their successors, ever
used those empty titles, nor took upon themselves the name of servants,
as we do to every fellow we meet in the streets. When such ways of speaking
are once introduced, they must needs swell to a more than ordinary height
in all transactions with princes. Most of them naturally delight in vanity,
and courtiers never speak more truth, than when they most extol their masters,
and assume to themselves the names that best express the most abject slavery.
These being brought into mode, like all ill customs, increase by use; and
then no man can omit them without bringing that hatred and danger upon
himself, which few will undergo, except for something that is evidently
of great importance. Matters of ceremony and title at the first seem not
to be so; and being for some time neglected, they acquire such strength
as not to be easily removed. From private usage they pass into publick
acts; and those flatterers who gave a beginning to them, proposing them
in publick councils, where too many of that sort have always insinuated
themselves, gain credit enough to make them pass. This work was farther
advanced by the church of Rome, according to their custom of favouring
that most, which is most vain and corrupt; and it has been usual with the
popes and their adherents, liberally to gratify princes for services render'd
to the church, with titles that tended only to the prejudice of the people.
These poisonous plants having taken root, grew up so fast, that the titles
which, within the space of a hundred years, were thought sufficient for
the kings and queens of England, have of late been given to Monk and his
honourable duchess. New phrases have been 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
anything that is yet among us.
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 'tis not strange, that both the nobility and commonalty should be weary of it. No law could prevent the dangers of battle; 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 battle 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, 'tis 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 been impertinent, if it could have been 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 entirely 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 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
men's 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.
The word is taken from the Latin rebellare, which signifies no more than to renew a war. When a town or province had been 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 been 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 been 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 acknowledge 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 been 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 been 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 senate 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 been 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 rendered 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 myself 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 does, nor can perform any such act: Agreements and contracts have been 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 anything 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 Medici came to be masters of Tuscany, that country was without dispute, in men, money and arms, one of the most flourishing provinces in the world, as appears by Machiavelli's account, and the relation of what happened between Charles the eighth and the magistrates of Florence, which I have mentioned already from Guicciardini. Now whoever shall consider the strength of that country in those days, together with what it might have been in the space of a hundred and forty years, in which they have had no war, nor any other plague, than the extortion, fraud, rapine 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 duchy ought to pay him two crowns every half year, did in 1662 subtly find out, 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 discrete and virtuous pleasures at Turin.
The condition of the seventeen provinces of the Netherlands (and even of Spain itself) 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 private 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 itself 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 been 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 advantageous 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 administered; 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 acknowledge
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 set limits to them; but all reasonable men
confessing that they are instituted for the good of nations, they only
can deserve praise, who above all things endeavour to procure it, and appoint
means proportioned to that end. The great variety of governments which
we see in the world, is nothing but the effect of this care; and all nations
have been, and are more or less happy, as they or their ancestors have
had vigour of spirit, integrity of manners, and wisdom to invent and establish
such orders, as have better or worse provided for this common good, which
was sought by all. But as no rule can be so exact, to make provision against
all contestations; and all disputes about right do naturally end in force
when justice is denied (ill men never willingly submitting to any decision
that is contrary to their passions and interests) the best constitutions
are of no value, if there be not a power to support them. This power first
exerts itself in the execution of justice by the ordinary officers: But
no nation having been so happy, as not sometimes to produce such princes
as Edward and Richard the Seconds, and such ministers as Gaveston, Spencer,
and Tresilian, the ordinary officers of justice often want the will, and
always the power to restrain them. So that the rights and liberties of
a nation must be utterly subverted and abolished, if the power of the whole
may not be employed to assert them, or punish the violation of them. But
as it is the fundamental right of every nation to be governed by such laws,
in such manner, and by such persons as they think most conducing to their
own good, they cannot be accountable to any but themselves for what they
do in that most important affair.
To this I answer, that no right judgment can be given of human things, without a particular regard to the time in which they passed. We esteem Scipio, Hannibal, Pyrrhus, Alexander, Epaminondas and Caesar, to have been admirable commanders in war, because they had in a most eminent degree all the qualities that could make them so, and knew best how to employ the arms then in use according to the discipline of their times; and yet no man doubts, that if the most skilful of them could be raised from the grave, restored to the utmost vigour of mind and body, set at the head of the best armies he ever commanded, and placed upon the frontiers of France or Flanders, he would not know how to advance or retreat, nor by what means to take any of the places in those parts, as they are now fortified and defended; but would most certainly be beaten by any insignificant fellow with a small number of men, furnished with such arms as are now in use, and following the methods now practiced. Nay, the manner of marching, encamping, besieging, attacking, defending and fighting, is so much altered within the last threescore years, that no man observing the discipline that was then thought to be the best, could possibly defend himself against that which has been since found out, tho the terms are still the same. And if it be consider'd that political matters are subject to the same mutations (as certainly they are) it will be sufficient to excuse our ancestors, who suiting their government to the ages in which they lived, could neither foresee the changes that might happen in future generations, nor appoint remedies for the mischiefs they did not foresee.
They knew that the kings of several nations had been kept within the limits of the law, by the virtue and power of a great and brave nobility; and that no other way of supporting a mix'd monarchy had ever been known in the world, than by putting the balance into the hands of those who had the greatest interest in nations, and who by birth and estate enjoy'd greater advantages than kings could confer upon them for rewards of betraying their country. They knew that when the nobility was so great as not easily to be number'd, the little that was left to the king's disposal, was not sufficient to corrupt many; and if some might fall under the temptation, those who continued in their integrity, would easily be able to chastise them for deserting the publick cause, and by that means deter kings from endeavouring to seduce them from their duty. Whilst things continued in this posture, kings might safely be trusted (with the advice of their council) to confer the commands of the militia in 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 achieved 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 descendants 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 'tis 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 ancient 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 money 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 been 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 ancient 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 been industriously rendered
perplex: They who were to have upheld it are overthrown. That which might
have been 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 been 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 forever 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 ancient liberty, dignity and happiness;
and if we do not, the fault is owing to ourselves, and not to any want
of virtue and wisdom in them.
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 does 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 been 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 senate: But when Hannibal was at the gates, or any other imminent danger threatened them with destruction; if that magistrate had been drunk, mad, or gained by the enemy, no wise man can think that formalities were to have been 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 senate 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 Valerius against the decemviri; and whoever should do otherwise, might for sottishness be compared to the courtiers of the two last kings of Spain. The first of these, by name Philip the third, being indisposed in cold weather, a braziero of coals was brought into his chamber, and placed so near to him, that he was cruelly scorched. A nobleman then present said to one who stood by him, the king burns; the other answered, it was true, but the page, whose office it was to bring and remove the braziero, was not there; and before he could be found, his majesty's legs and face were so burnt, that it caus'd an erysipelas, of which he died. Philip the fourth escaped not much better, who being surprised as he was hunting by a violent storm of rain and hail, and no man presuming to lend the king a cloak, he was so wet before the officer could be found who carried his own, that he took a cold, which cast him into a dangerous fever. If kings like the consequences of such a regularity, they may cause it to be observed in their own families; but nations looking in the first place to their own safety, would be guilty of the most extreme stupidity, if they should suffer themselves to be ruined for adhering to such ceremonies.
This is said upon a supposition, that the whole power of calling and dissolving parliaments, is by the law placed in the king: but I utterly deny that it is so; and to prove it, shall give the following reasons.
(1.) That the king can have no such power, unless it be given to him, for every man is originally free; and the same power that makes him king, gives him all that belongs to his being king. 'Tis not therefore an inherent, but a delegated power; and whoever receives it, is accountable to those that gave it; for, as our author is forced to confess, they who give authority by commission, do always retain more than they grant.
(2.) The law for annual parliaments expressly declares it not to be in the king's power, as to the point of their meeting, nor consequently their continuance. For they meet to no purpose if they may not continue to do the work for which they meet; and it were absurd to give them a power of meeting, if they might not continue till it be done: For, as Grotius says, Qui dat finem, dat media ad finem necessaria. The only reason why parliaments do meet, is to provide for the publick good; and they by law ought to meet for that end. They ought not therefore to be dissolved, till it be accomplished. For this reason the opinion given by Tresilian, that kings might dissolve parliaments at their pleasure, was judged to be a principal part of his treason.
(3.) We have already proved, that Saxons, Danes, Normans, &c. who had no title to the crown, were made kings by micklegemotes, witenagemotes, and parliaments; that is, either by the whole people, or their representatives: Others have been by the same authority restrained, brought to order, or deposed. But as it is impossible that such as were not kings, and had no title to be kings, could by virtue of a kingly power call parliaments, when they had none; and absurd to think that such as were in the throne, who had not govern'd according to law, would suffer themselves to be restrain'd, imprisoned, or deposed by parliaments, called and sitting by themselves, and still depending upon their will to be or not to be; 'tis certain that parliaments have in themselves a power of sitting and acting for the publick good.
2. To the second. The various customs used in elections are nothing to this question. In the counties, which make up the body of the nation, all freeholders have their votes: these are properly cives, members of the commonwealth, in distinction from those who are only incolae , or inhabitants, villains, and such as being under their parents, are not yet sui juris. These in the beginning of the Saxons' reign in England, composed the micklegemotes; and when they grew to be so numerous that one place could not contain them, or so far dispersed, that without trouble and danger they could not leave their habitations, they deputed such as should represent them. When the nation came to be more polished, to inhabit cities and towns, and to set up several arts and trades; those who exercised them were thought to be as useful to the commonwealth, as the freeholders in the country, and to deserve the same privileges. But it not being reasonable that everyone should in this case do what he pleased, it was thought fit that the king with his council (which always consisted of the proceres and magnates regni) should judge what numbers of men, and what places deserved to be made corporations or bodies politick, and to enjoy those privileges, by which he did not confer upon them anything that was his, but according to the trust reposed in him, did dispense out of the publick stock parcels of what he had received from the whole nation: And whether this was to be enjoy'd by all the inhabitants, as in Westminster; by the common hall, as in London; or by the mayor, aldermen, jurats and corporation, as in other places, 'tis the same thing: for in all these cases the king does only distribute, not give, and under the same condition that he might call parliaments, that is, for the publick good. This indeed increases the honor of the person entrusted, and adds weight to the obligation incumbent upon him; but can never change the nature of the thing, so as to make that an inherent, which is only a delegated power. And as parliaments, when occasion required, have been assembled, have refus'd to be dissolved till their work was finished, have severely punished those who went about to persuade kings, that such matters depended absolutely upon their will, and made laws to the contrary: 'tis not to be imagined, that they would not also have interposed their authority in matters of charters, if it had been observed that any king had notoriously abused the trust reposed in him, and turned the power to his private advantage, with which he was entrusted for the publick good.
That which renders this most plain and safe, is, that men chosen in this manner to serve in parliament, do not act by themselves, but in conjunction with others who are sent thither by prescription; nor by a power derived from kings, but from those that chuse them. If it be true therefore that those who delegate powers, do always retain to themselves more than they give, they who send these men, do not give them an absolute power of doing whatsoever they please, but retain to themselves more than they confer upon their deputies: They must therefore be accountable to their principals, contrary to what our author asserts. This continues in force, tho he knows not, that any knights and burgesses have ever been questioned by those that sent them; for it cannot be concluded they ought not, or may not be question'd, because none have been questioned. But in truth they are frequently questioned: The people do perpetually judge of the behaviour of their deputies. Whensoever any of them has the misfortune not to satisfy the major part of those that chose him, he is sure to be rejected with disgrace the next time he shall desire to be chosen. This is not only a sufficient punishment for such faults, as he who is but one of five hundred may probably commit, but as much as the greatest and freest people of the world did ever inflict upon their commanders that brought the greatest losses upon them. Appius Claudius, Pomponius, and Terentius Varro, survived the greatest defeats that ever the Romans suffer'd; and tho they had caused them by their folly and perverseness, were never punished. Yet I think no man doubts that the Romans had as much right over their own officers, as the Athenians and Carthaginians, who frequently put them to death. They thought the mind of a commander would be too much distracted, if at the same time he should stand in fear both of the enemy and his own countrymen: And as they always endeavoured to chuse the best men, they would lay no other necessity upon them of performing their duty, than what was suggested by their own virtue and love to their country. 'Tis not therefore to be thought strange, if the people of England have follow'd the most generous and most prosperous examples. Besides, if anything has been defective in their usual proceedings with their delegates, the inconvenience has been repaired by the modesty of the best and wisest of them that were chosen. Many in all ages, and sometimes the whole body of the commons, have refused to give their opinion in some cases, till they had consulted with those that sent them: The houses have been often adjourned to give them time to do it; and if this were done more frequently, or that the towns, cities and counties, had on some occasions given instructions to their deputies, matters would probably have gone better in parliament than they have often done.
3. The question is not, whether the parliament be impeccable or infallible, but whether an assembly of nobility, with a house of commons composed of those who are best esteemed by their neighbors in all the towns and counties of England, are more or less subject to error or corruption, than such a man, woman or child, as happens to be next in blood to the last king. Many men do usually see more than one; and if we may believe the wisest king, In the multitude of counsellors, there is safety. Such as are of mature age, good experience, and approved reputation for virtue and wisdom, will probably judge better than children or fools. Men are thought to be more fit for war than women; and those who are bred up in discipline, to understand it better than those who never knew anything of it. If some counties or cities fail to chuse such men as are eminently capable, all will hardly be so mistaken as to chuse those who have no more of wisdom or virtue, than is usually entail'd upon families. But Filmer at a venture admires the profound wisdom of the king; tho besides such as we have known, histories give us too many proofs, that all those who have been possessed of crowns, have not excelled that way. He speaks of kings in general, and makes no difference between Solomon and his foolish son. He distinguishes not our Edward the first from Edward the second; Edward the third from Richard the second; or Henry the fifth from Henry the sixth. And because all of them were kings, all of them, if he deserves credit, must needs have been endow'd with profound wisdom. David was wise as an angel of God; therefore the present kings of France, Spain and Sweden, must have been so also, when they were but five years old: Joan of Castile could not be mad, nor the two Joans of Naples infamous strumpets, or else all his arguments fall to the ground. For tho Solomon's wisdom surpassed that of all the people, yet men could not rely equally upon that of Rehoboam, unless it had been equal. And if they are all equal in wisdom when they come to be equally kings, Perseus of Macedon was as great a captain as Philip or Alexander; Commodus and Heliogabalus were as wise and virtuous as Marcus Aurelius and Antoninus Pius: nay, Christina of Sweden in her infancy was as fit to command an army as her valiant father. If this be most absurd and false, there can be neither reason nor sense in proposing, as our author does, that the power should be in the king, because the parliament is not infallible. It is, says he, for the head to correct, and not to expect the consent of the members or parties peccant to be judges in their own cases; nor is it needful to confine the king, &c. Besides that this is directly contrary to his own fundamental maxim, that no man must be the judge of his own case, in as much as this would put the power into the king's hands, to decide the controversies between himself and the people, in which his own passions, private interest, and the corrupt counsels of ill ministers, will always lead him out of the way of justice, the inconveniences that may arise from a possibility that the parliament or people is not infallible, will be turned to the most certain and destructive mischiefs; as must have fallen out in Spain, if, upon a supposition that the estates of Castile might err, the correction of such errors had been left to the profound wisdom and exquisite judgment of Joan their queen and head, who was stark mad. And the like may be said of many other princes, who through natural or accidental infirmities, want of age, or dotage, have been utterly unable to judge of anything.
The matter will not be much mended, tho I pass from idiots and lunaticks, to such as know well enough how to clothe and feed themselves, and to perform the ordinary functions of life; and yet have been as uncapable of giving a right judgment concerning the weighty matters of government, as the weakest of children, or the most furious of madmen. Good manners forbid me to enumerate the examples of this kind, which Europe has produced even in this age: But I should commit a greater fault, if I did in silence pass over the extravagances of those, who being most weak in judgment, and irregular in their appetites, have been most impatient of any restraint upon their will. The brave Gustavus Adolphus, and his nephew Carolus Gustavus, who was not inferior to him in valour, wisdom, and love to his people, were content with the power that the laws of their country gave to them: But Frederick the fourth of Denmark never rested till he had overthrown the liberty of that nation. Casimir by attempting the like in Poland, lost almost half of that kingdom; and flying from the other, left all to be ravaged by Swedes, Tartars, and Cossacks. The present emperor who passed his time in setting songs in musick with a wretched Italian eunuch, when he ought to have been at the head of a brave army, raised to oppose the Turks in the year 1664, and which under good conduct might have overthown the Ottoman empire, as soon as he was delivered from the fear of that enemy, fell upon his own subjects with such cruelty, that they are now forced to fly to the Turks for protection; the Protestants especially, who find their condition more tolerable under those professed enemies to Christianity, than to be exposed to the pride, avarice, perfidiousness and violence of the Jesuits by whom he is governed. And the qualities of the king of Portugal are so well known, together with the condition to which he would have brought his kingdom if he had not been sent to the Terceiras, that I need not speak particularly of him.
If kings therefore, by virtue of their office, are constituted judges
over the body of their people, because the people, or parliaments representing
them, are not infallible; those kings who are children, fools, disabled
by age, or madmen, are so also; women have the same right where they are
admitted to the succession; those men who, tho of ripe age and not superannuated,
nor directly fools or madmen, yet absolutely uncapable of judging important
affairs, or by their passions, interests, vices, or malice and wickedness
of their ministers, servants and favorites, are set to oppress and ruin
the people, enjoy the same privilege; than which nothing can be imagined
more absurd and abominable, nor more directly tending to the corruption
and destruction of the nations under them, for whose good and safety our
author confesses they have their power.
The word head is figuratively used both in Scripture and profane authors in several senses, in relation to places or persons, and always implies something of real or seeming preeminence in point of honor or jurisdiction. Thus Damascus is said to be the head of Syria; Samaria of Ephraim, and Ephraim of the ten tribes: that is, Ephraim was the chief tribe; Samaria was the chief city of Ephraim, and Damascus of Syria; tho it be certain that Ephraim had no jurisdiction over the other tribes, nor Samaria over the other cities of Ephraim, but every one according to the law had an equal power within itself, or the territories belonging to it; and no privileges were granted to one above another, except to Jerusalem, in the matter of religion, because the Temple was placed there.
The words also head, prince, principal man, or captain, seem to be equivocal; and in this sense the same men are called heads of the tribes, princes in the houses of their fathers: and 'tis said, that two hundred heads of the tribe of Reuben were carried away captive by Tiglathpileser, and proportionably in the other tribes; which were a strange thing, if the word did imply that supreme, absolute and infinite power that our author attributes to it: and no man of less understanding than he, can comprehend how there should be two hundred or more sovereign unlimited powers in one tribe, most especially when 'tis certain that one series of kings had for many ages reigned over that tribe and nine more; and that every one of those tribes, as well as the particular cities, even from their first entrance into the promised land, had a full jurisdiction within itself. When the Gileadites came to Jephthah, he suspected them, and asked whether indeed they intended to make him their head? they answered, if he would lead them against the Ammonites, he should be their head. In the like sense when Jul. Caesar in despair would have killed himself, one of his soldiers dissuaded him from that design, by telling him, That the safety of so many nations that had made him their head, depending upon his life, it would be cruelty in him to take such a resolution. But for all that, when this head was taken off, the body did still subsist: upon which I observe many fundamental differences between the relation of this figurative head (even when the word is rightly applied) and that of the natural head to their respective bodies.
The figurative heads may be many, the natural but one.
The people makes or creates the figurative head, the natural is from itself, or connate with the body.
The natural body cannot change or subsist without the natural head; but a people may change and subsist very well without the artificial. Nay, if it had been true, that the world had chosen Caesar, as it was not (for he was chosen only by a factious mercenary army, and the soundest part so far opposed that election, that they brought him to think of killing himself) there could have been no truth in this flattering assertion, That the safety of the whole depended upon his life: for the world could not only subsist without him, but without any such head, as it had done, before he by the help of his corrupted soldiery had usurped the power; which also shews that a civil head may be a matter of convenience, but not of necessity. Many nations have had none; and if the expression be so far stretched, as to make it extend to the annual or temporary magistrates set up by the Athenians, Carthaginians, Romans, and other ancient commonwealths, or to those at this day in Venice, Holland, Switzerland, and other places, it must be confess'd that the people who made, deposed, abrogated, or abolished both the magistrates and magistracies, had the power of framing, directing and removing their heads, which our author will say is most absurd. Yet they did it without any prejudice to themselves, and very often much to their advantage.
In mentioning these vast and essential differences between the natural and political head, I no way intend to exclude others that may be of equal weight; but as all figurative expressions have their strength only from similitude, there can be little or none in this, which differs in so many important points, and can therefore be of no effect.
However, right proceeds from identity, and not from similitude. The right of a man over me is by being my father, and not by being like my father. If I had a brother so perfectly resembling me as to deceive our parents, which has sometimes happened to twins, it could give him no right to anything that is mine. If the power therefore of correcting the parties peccant, which our author attributes to kings, be grounded upon the name of head, and a resemblance between the heads of the body politick and body natural; if this resemblance be found to be exceedingly imperfect, uncertain, or perhaps no way relating to the matter in question; or tho it did, and were absolutely perfect, could confer no right; the allegation of it is impertinent and absurd.
This being cleared, 'tis time to examine, what the office of the head is in a natural body, that we may learn from thence why that name is sometimes given to those who are eminent in political bodies, and to whom it does belong.
Some men account the head to be so absolutely the seat of all the senses, as to derive even that of feeling, which is exercised in every part, from the brain: but I think 'tis not doubted that all the rest have both their seat and function in the head; and whatsoever is useful or hurtful to a man, is by them represented to the understanding; as Aristotle says, Nihil est in intellectu, quod non sit prius in sensu. This is properly the part of every magistrate: He is the sentinel of the publick, and is to represent what he discovers beneficial or hurtful to the society; which office belongs not only to the supreme, but proportionably to the subordinate. In this sense were the chief men among the Israelites called heads of their father's house, choice and mighty men of valour, chief of the princes. And in the following chapter mention is made of nine hundred and fifty Benjaminites, chief men in the house of their fathers. These men exercised a charitable care over such as were inferior to them in power and valour, without any shadow of sovereignty, or possibility that there could be so many sovereigns: and such as were under their care are said to be their brethren; which is not a word of majesty and domination, but of dearness and equality. The name therefore of head may be given to a sovereign, but it implies nothing of sovereignty; and must be exercised with charity, which always terminates in the good of others. The head cannot correct or chastise; the proper work of that part is only to indicate, and he who takes upon him to do more, is not the head. A natural body is homogeneous, and cannot subsist if it be not so. We cannot take one part of a horse, another of a bear, and put upon them the head of a lion; for it would be a monster, that would have neither action nor life. The head must be of the same nature with the other members, or it cannot subsist. But the lord or master differs in specie from his servants and slaves, he is not therefore properly their head.
Besides, the head cannot have a subsistence without the body, nor any
interest contrary to that of the body; and 'tis impossible for anything
to be good for the head, that is hurtful to the body. A prince therefore,
or magistrate, who sets up an interest in himself distinct from, or repugnant
to that of the people, renounces the title or quality of their head. Indeed,
Moses was the head of the Israelites; for when God threatened to destroy
that people, and promised to make him a great nation, he waived the particular
advantages offer'd to himself, interceded for them, and procured their
pardon. Yet he was not able to bear the weight of the government alone,
but desired that some might be appointed to assist him. Gideon was the
head of the same people, but he would not reign himself, nor suffer his
sons to reign over them. Samuel was also their head; he took nothing from
any man, defrauded none, took bribes from no man, oppressed none; God and
the people were his witnesses: He blamed them for their rebellion against
God in asking a king, but was no way concerned for himself or his family.
David likewise had a right to that title; for he desired that God would
spare the people, and turn the effect of his anger against himself, and
the house of his father. But Rehoboam was not their head; for tho he acknowledged
that his father had laid a heavy yoke upon them, yet he told them he would
add to the weight; and that if his father had chastised them with whips,
he would chastise them with scorpions. The head is no burden to the body,
and can lay none upon it; the head cannot chastise any member; and he who
does so, be it more or less, cannot be the head. Jeroboam was not the head
of the revolting tribes; for the head takes care of the members, and to
provide for the safety of the whole: But he through fear that the people
going to Jerusalem to worship, should return to the house of David, by
setting up idols to secure his own interests, drew guilt and destruction
upon them. Tho it should be granted that Augustus by a gentle use of his
power, had in a manner expiated the detestable villainies committed in
the acquisition, and had truly deserved to be called the head of the Romans;
yet that title could no way belong to Caligula, Claudius, Nero or Vitellius,
who neither had the qualities requir'd in the head, nor the understanding
or will to perform the office. Nay, if I should carry the matter farther,
and acknowledge that Brutus, Cincinnatus, Fabius, Camillus, and others,
who in the time of their annual or shorter magistracies, had by their vigilance,
virtue and care to preserve the city in safety, and to provide for the
publick good, performed the office of the head, and might deserve the name;
I might justly deny it to the greatest princes that have been in the world,
who having their power for life, and leaving it to descend to their children,
have wanted the virtues requir'd for the performance of their duty: And
I should less fear to be guilty of an absurdity in saying, that a nation
might every year change its head, than that he can be the head, who cares
not for the members, nor understands the things that conduce to their good,
most especially if he set up an interest in himself against them. It cannot
be said that these are imaginary cases, and that no prince does these things;
for the proof is too easy, and the examples too numerous. Caligula could
not have wished the Romans but one head, that he might cut it off at once,
if he had been that head, and had advanced no interest contrary to that
of the members. Nero had not burn'd the city of Rome, if his concernments
had been inseparably united to those of the people. He who caused above
three hundred thousand of his innocent unarmed subjects to be murder'd,
and fill'd his whole kingdom with fire and blood, did set up a personal
interest repugnant to that of the nation; and no better testimony can be
requir'd to shew that he did so, than a letter written by his son, to take
off the penalty due to one of the chief ministers of those cruelties, for
this reason, that what he had done, was by the command and for the service
of his royal father. King John did not pursue the advantage of his
people, when he endeavoured to subject them to the pope or the Moors. And
whatever prince seeks assistance from foreign powers, or makes leagues
with any stranger or enemy for his own advantage against his people, however
secret the treaty may be, declares himself not to be the head, but an enemy
to them. The head cannot stand in need of an exterior help against the
body, nor subsist when divided from it. He therefore that courts such an
assistance, divides himself from the body; and if he do subsist, it must
be by a life he has in himself, distinct from that of the body, which the
head cannot have. But besides these enormities, that testify the most wicked
rage and fury in the highest degree, there is another practice, which no
man that knows the world can deny to be common with princes, and incompatible
with the nature of a head. The head cannot desire to draw all the nourishment
of the body to itself, nor more than a due proportion. If the rest of the
parts are sick, weak or cold, the head suffers equally with them, and if
they perish must perish also. Let this be compared with the actions of
many princes we know, and we shall soon see which of them are heads of
their people. If the gold brought from the Indies has been equally distributed
by the kings of Spain to the body of that nation, I consent they may be
called the heads. If the kings of France assume no more of the riches of
that great kingdom than their due proportion, let them also wear that honourable
name. But if the naked backs and empty bellies of their miserable subjects
evince the contrary, it can by no means belong to them. If those great
nations waste and languish; if nothing be so common in the best provinces
belonging to them, as misery, famine, and all the effects of the most outrageous
oppression, whilst their princes and favorites possess such treasures as
the most wanton prodigality cannot exhaust; if that which is gained by
the sweat of so many millions of men, be torn out of the mouths of their
starving wives and children, to foment the vices of those luxurious courts,
or reward the ministers of their lusts, the nourishment is not distributed
equally to all the parts of the body; the economy of the whole is overthrown,
and they who do these things, cannot be the heads, nor parts of the body,
but something distinct from and repugnant to it. 'Tis not therefore he
who is found in, or advanced to the place of the head, who is truly the
head: 'Tis not he who ought, but he who does perform the office of the
head, that deserves the name and privileges belonging to the head. If our
author therefore will persuade us that any king is head of his people,
he must do it by arguments peculiarly relating to him, since those in general
are found to be false. If he say that the king as king may direct or correct
the people, and that the power of determining all controversies must be
referred to him, because they may be mistaken, he must show that the king
is infallible; for unless he do so, the wound is not cured. This also must
be by some other way, than by saying he is their head; for such powers
belong not to the office of the head, and we see that all kings do not
deserve that name: Many of them want both understanding and will to perform
the functions of the head; and many act directly contrary in the whole
course of their government. If any therefore among them have merited the
glorious name of heads of nations, it must have been by their personal
virtues, by a vigilant care of the good of their people, by an inseparable
conjunction of interests with them, by an ardent love to every member of
the society, by a moderation of spirit affecting no undue superiority,
or assuming any singular advantage which they are not willing to communicate
to every part of the political body. He who finds this merit in himself,
will scorn all the advantages that can be drawn from misapplied names:
He that knows such honor to be peculiarly due to him for being the best
of kings, will never glory in that which may be common to him with the
worst. Nay, whoever pretends by such general discourses as these of our
author, to advance the particular interests of any one king, does either
know he is of no merit, and that nothing can be said for him which will
not as well agree with the worst of men; or cares not what he says so he
may do mischief, and is well enough contented, that he who is set up by
such maxims as a publick plague, may fall in the ruin he brings upon the
1. That in well-constituted governments, the remedies against ill magistrates are easy and safe.
2. That 'tis 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; 'Tis most evident that in well-regulated governments these remedies have been 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. Leonidas 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 alleged; and if matters have not at all times, and in all places, succeeded in the same manner, it has been because the same courses were not everywhere 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 anything 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 been too indulgent to Phaethon, 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 been precipitated into ruin by prosperity. When the prophet told Hazael the villainies 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 everyone 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 slippery 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 rightly to balance the powers of their magistrates, have been 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 been 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 been well observed in the first
constitution, or from the changes of times, corruption of manners, insensible
encroachments, or violent usurpations of princes, have been 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. 'Tis 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 Machiavelli's
account is a disease, but tyranny is the death of a state. Gentle ways
are first to be used, and 'tis best if the work can be done by them; but
it must not be left undone if they fail. 'Tis good to use supplications,
advices and remonstrances; but those who have no regard to justice, and
will not hearken to counsel, must be constrained. 'Tis 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 villainies.
This would have been yet more clear, if the world had then been in such
a temper as to be capable of an entire liberty. But the ancient foundations
had been 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
breathe 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 licked 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 everyone 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 alleged amongst other things the murder of her husband plainly proved
against her; asserted the ancient right and custom of that kingdom, of
examining the actions of their kings; by which means, he said, many had
been 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 itself as never to have been 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.
Now if a private 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 does for his own sake; the same right must more certainly belong to whole nations. When a controversy happens between Gaius and Seius in a matter of right, neither of them may determine the cause, but it must be referred to a judge superior to both; not because 'tis not fit that a man should be judge of his own case, but because they have both an equal right, and neither of them owes 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 judge, unless the contest be with one who lives upon an equal foot with me. No man can be my judge, 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 itself. 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 private 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 itself. If the magistrate and people were upon equal terms, as Gaius and Seius, receiving equal and mutual advantages from each other, no man could be judge of their differences, but such as they should set up for that end. This has been done by many nations. The ancient Germans referred the decision of the most difficult matters to their priests: the Gauls and Britains to the Druids: the Mohammedans for some ages to the caliphs 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 yourself or by them, whether they be men, women, children, mad, foolish, or vicious. Nay if any such thing had been, 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 been in any place, 'tis 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 judge 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 administered, 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 been subject to no other judgment, they would have compleated the destruction of the empire. If the disputes between Durstus, Evenus the third, Dardannus, and other kings of Scotland, with the nobility and people, might have been 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 places, 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 been 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 judge 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 judge, 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 private 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 been altered in form, or reduced to its original purity, by changing the families or persons who abused the power with which they had been 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 Witiza 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 vicious kings. Such nations as have been 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 respite from ruin; and the government which ought to have been 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 borne: 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 life, 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 thoroughly,
either by changing the government entirely, or reforming it according to
the first institution, and making such good laws as may preserve its integrity
when reformed. This has been so frequent in all the nations (both ancient
and modern) with whose actions we are best acquainted, as appears by the
foregoing examples, and many others that might be alleged, 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 does 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.
1. If the law did intend that he or she who wears the crown, should in his or her person judge all causes, and determine the most difficult questions, it must like our author presume that they will always be of profound wisdom to comprehend all of them, and of perfect integrity always to act according to their understanding. Which is no less than to lay the foundation of the government upon a thing merely contingent, that either never was, or very often fails, as is too much verified by experience, and the histories of all nations; or else to refer the decision of all to those who through the infirmities of age, sex, or person, are often uncapable of judging the least, or subject to such passions and vices as would divert them from justice tho they did understand it; both which seem to be almost equally preposterous.
2. The law must also presume that the prince is always present in all the places where his name is used. The king of France is (as I have said already) esteemed to be present on the seat of justice in all the parliaments and sovereign courts of the kingdom: and if his corporeal presence were by that phrase to be understood, he must be in all those distinct and far distant places at the same time; which absurdity can hardly be parallel'd, unless by the popish opinion of transubstantiation. But indeed they are so far from being guilty of such monstrous absurdity, that he cannot in person be present at any trial, and no man can be judged if he be. This was plainly asserted to Lewis the 13th (who would have been at the trial of the duke of Candale) by the president de Bellievre, who told him that as he could judge no man himself, so they could not judge any if he were present: upon which he retired.
3. The laws of most kingdoms giving to kings the confiscation of delinquents' estates, if they in their own persons might give judgment upon them, they would be constituted both judges and parties; which besides the foremention'd incapacities to which princes are as much subject as other men, would tempt them by their own personal interest to subvert all manner of justice.
This therefore not being the. meaning of the law, we are to inquire what it is; and the thing is so plain that we cannot mistake, unless we do it wilfully. Some name must be used in all manner of transactions, and in matters of publick concernment none can be so fit as that of the principal magistrate. Thus are leagues made, not only with kings and emperors, but with the dukes of Venice and Genoa, the avoyer and senate of a canton in Switzerland, the burgermaster of an imperial town in Germany, and the states-general of the United Provinces. But no man thinking, I presume, these leagues would be of any value, if they could only oblige the persons whose names are used, 'tis plain that they do not stipulate only for themselves; and that their stipulations would be of no value if they were merely personal. And nothing can more certainly prove they are not so, than that we certainly know, these dukes, avoyers and burgermasters can do nothing of themselves. The power of the states-general of the United Provinces is limited to the points mentioned in the Act of Union made at Utrecht. The empire is not obliged by any stipulation made by the emperor without their consent. Nothing is more common than for one king making a league with another, to exact a confirmation of their agreement, by the parliaments, diets or general estates; because, says Grotius, a prince does not stipulate for himself, but for the people under his government; and a king deprived of his kingdom, loses the right of sending an ambassador. The powers of Europe shewed themselves to be of this opinion in the case of Portugal. When Philip the second had gained the possession, they treated with him concerning the affairs relating to that kingdom: Few regarded Don Antonio; and no man considered the dukes of Savoy, Parma or Braganza, who perhaps had the most plausible titles: But when his grandson Philip the fourth had lost that kingdom, and the people had set up the duke of Braganza, they all treated with him as king. And the English court, tho then in amity with Spain, and not a little influenced by a Spanish faction, gave example to others, by treating with him and not with Spain touching matters relating to that state. Nay, I have been informed by those who well understood the affairs of that time, that the Lord Cottington advising the late king not to receive any persons sent from the duke of Braganza, rebel to his ally the king of Spain, in the quality of ambassadors; the king answered, that he must look upon that person to be king of Portugal, who was acknowledged by the nation. And I am mistaken if his majesty now reigning did not find all the princes and states of the world to be of the same mind, when he was out of his kingdom, and could oblige no man but himself and a few followers by any treaty he could make.
For the same reason the names of kings are used in treaties, when they are either children, or otherwise uncapable of knowing what alliances are fit to be made or rejected; and yet such treaties do equally oblige them, their successors and people, as if they were of mature age and fit for government. No man therefore ought to think it strange, if the king's name be used in domestick affairs, of which he neither ought nor can take any cognizance. In these cases he is perpetually a minor: He must suffer the law to take its due course; and the judges, tho nominated by him, are obliged by oath not to have any regard to his letters or personal commands. If a man be sued, he must appear; and a delinquent is to be tried coram rege, but no otherwise than secundum legem terrae, according to the law of the land, not his personal will or opinion. And the judgments given must be executed, whether they please him or not, it being always understood that he can speak no otherwise than the law speaks, and is always present as far as the law requires. For this reason a noble lord who was irregularly detain'd in prison in 1681, being by habeas corpus brought to the bar of the king's bench, where he sued to be releas'd upon bail; and an ignorant judge telling him he must apply himself to the king, he replied, that he came thither for that end; that the king might eat, drink, or sleep where he pleased, but when he render'd justice he was always in that place. The king that renders justice is indeed always there: He never sleeps; he is subject to no infirmity; he never dies unless the nation be extinguished, or so dissipated as to have no government. No nation that has a sovereign power within itself, does ever want this king. He was in Athens and Rome, as well as at Babylon and Susa; and is as properly said to be now in Venice, Switzerland or Holland, as in France, Morocco or Turkey. This is he to whom we all owe a simple and unconditional obedience. This is he who never does any wrong: 'Tis before him we appear, when we demand justice, or render an account of our actions. All juries give their verdict in his sight: They are his commands that the judges are bound and sworn to obey, when they are not at all to consider such as they receive from the person that wears the crown. 'Twas for treason against him that Tresilian and others like to him in several ages were hanged. They gratified the lusts of the visible powers, but the invisible king would not be mock'd. He caused justice to be executed upon Empson and Dudley. He was injured when the perjur'd wretches who gave that accursed judgment in the case of ship money, were suffered to escape the like punishment by means of the ensuing troubles which they had chiefly raised. And I leave it to those who are concerned, to consider how many in our days may expect vengeance for the like crimes.
I should here conclude this point, if the power of granting a noli prosequi: cesset processus, and pardons, which are said to be annexed to the person of the king, were not taken for a proof that all proceedings at law depend upon his will. But whoever would from hence draw a general conclusion, must first prove his proposition to be universally true. If it be wholly false, no true deduction can be made; and if it be true only in some cases, 'tis absurd to draw from thence a general conclusion; and to erect a vast fabrick upon a narrow foundation is impossible. As to the general proposition I utterly deny it. The king cannot stop any suit that I begin in my own name, or invalidate any judgment I obtain upon it: He cannot release a debt of ten shillings due to me, nor a sentence for the like sum given upon an action of battery, assault, trespass, publick nuisance, or the like. He cannot pardon a man condemned upon an appeal, nor hinder the person injured from appealing. His power therefore is not universal: if it be not universal, it cannot be inherent, but conferred upon him, or entrusted by a superior power that limits it.
These limits are fixed by the law, the law therefore is above him. His
proceedings must be regulated by the law, and not the law by his will.
Besides, the extent of those limits can only be known by the intention
of the law that sets them; and are so visible, that none but such as are
wilfully blind can mistake. It cannot be imagined that the law, which does
not give a power to the king of pardoning a man that breaks my hedge, can
intend he should have power to pardon one who kills my father, breaks my
house, robs me of my goods, abuses my children and servants, wounds me,
and brings me in danger of my life. Whatever power he has in such cases,
is founded upon a presumption, that he who has sworn not to deny or delay
justice to any man, will not break his oath to interrupt it. And farther,
as he does nothing but what he may rightly do, cum magnatum & sapientum
consilio; and that 'tis supposed, they will never advise him to do
anything, but what ought to be done, in order to attain the great ends
of the law, justice, and the publick safety; nevertheless lest this should
not be sufficient to keep things in their due order, or that the king should
forget his oath, not to delay or deny justice to any man, his counsellors
are exposed to the severest punishments, if they advise him to do anything
contrary to it, and the law upon which it is grounded. So that the utmost
advantage the king can pretend to in this case, is no more than that of
the Norman, who said he had gained his cause, because it depended upon
a point that was to be decided by his oath; that is to say, if he will
betray the trust reposed in him, and perjure himself, he may sometimes
exempt a villain from the punishment he deserves, and take the guilt upon
himself. I say sometimes; for appeals may be brought in some cases, and
the waterman who had been pardoned by his majesty in the year 1680, for
a murder he had committed, was condemned and hanged at the assizes upon
an appeal. Nay, in cases of treason, which some men think relate most particularly
to the person of the king, he cannot always do it. Gaveston, the two Spencers,
Tresilian, Empson, Dudley, and others, have been executed as traitors for
things done by the king's command; and 'tis not doubted they would have
been saved, if the king's power had extended so far. I might add the cases
of the earls of Strafford and Danby; for tho the king signed a warrant
for the execution of the first, no man doubts he would have saved him,
if it had been in his power. The other continues in prison notwithstanding
his pardon; and for anything I know he may continue where he is, or come
out in a way that will not be to his satisfaction unless he be found innocent,
or something fall out more to his advantage than his majesty's approbation
of what he has done. If therefore the king cannot interpose his authority
to hinder the course of the law in contests between private men, nor remit
the debts adjudged to be due, or the damages given to the persons aggriev'd,
he can in his own person have no other power in things of this nature,
than in some degree to mitigate the vindictive power of the law; and this
also is to be exercised no other way than as he is entrusted. But if he
acts even in this capacity by a delegated power, and in few cases, he must
act according to the ends for which he is so entrusted, as the same law
cum magnatum & sapientum consilio, and is not therein
to pursue his own will and interests: If his oath farther oblige him not
to do it; and his ministers are liable to punishment, if they advise him
otherwise: If in matters of appeal he have no power; and if his pardons
have been of no value, when contrary to his oath he has abused that with
which he is entrusted, to the patronizing of crimes, and exempting such
delinquents from punishment, as could not be pardoned without prejudice
to the publick, I may justly conclude, that the king, before whom every
man is bound to appear, who does perpetually and impartially distribute
justice to the nation, is not the man or woman that wears the crown; and
that he or she cannot determine those matters, which by the law are referr'd
to the king. Whether therefore such matters are ordinary or extraordinary,
the decision is and ought to be placed where there is most wisdom and stability,
and where passion and private interest does least prevail to the obstruction
of justice. This is the only way to obviate that confusion and mischief,
which our author thinks it would introduce. In cases of the first sort,
this is done in England by judges and juries: In the other by the parliament,
which being the representative body of the people, and the collected wisdom
of the nation, is least subject to error, most exempted from passion, and
most free from corruption, their own good both publick and private depending
upon the rectitude of their sanctions. They cannot do anything that is
ill without damage to themselves and their posterity; which being all that
can be done by human understanding, our lives, liberties and properties
are by our laws directed to depend upon them.
However in this case the question is not concerning a person: the same
counsels are to be follow'd when Moses or Samuel is in the throne, as if
Caligula had invaded it. Laws ought to aim at perpetuity, but the virtues
of a man die with him, and very often before him. Those who have deserved
the highest praises for wisdom and integrity, have frequently left the
honors they enjoyed to foolish and vicious children. If virtue may in any
respect be said to outlive the person, it can only be when good men frame
such laws and constitutions as by favouring it preserve themselves. This
has never been done otherwise, than by balancing the powers in such a manner,
that the corruption which one or a few men might fall into, should not
be suffer'd to spread the contagion to the ruin of the whole. The long
continuance of Lycurgus his laws is to be attributed to this: They restrained
the lusts of kings, and reduced those to order who adventured to transgress
them: Whereas the whole fabrick must have fallen to the ground in a short
time, if the first that had a fancy to be absolute, had been able to effect
his design. This has been the fate of all governments that were made to
depend upon the virtue of a man, which never continues long in any family,
and when that fails all is lost. The nations therefore that are so happy
to have good kings, ought to make a right use of them, by establishing
the good that may outlast their lives. Those of them that are good, will
readily join in this work, and take care that their successors may be obliged
in doing the like, to be equally beneficial to their own families, and
the people they govern. If the rulers of nations be restrained, not only
the people is by that means secured from the mischiefs of their vices and
follies, but they themselves are preserved from the greatest temptations
to ill, and the terrible effects of the vengeance that frequently ensues
upon it. An unlimited prince might be justly compared to a weak ship exposed
to a violent storm, with a vast sail and no rudder. We have an eminent
example of this in the book of Esther. A wicked villain having filled the
ears of a foolish king with false stories of the Jews, he issues out 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 Nebuchadnezzar, 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 been 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 for 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 been 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 been 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 been 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, impales, or throws to his elephants whomsoever he pleases: No man
has anything that he can call his own: He seldom fails to destroy those
who have been 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
monarch. His majesty, as I suppose, is sufficiently exalted; for he
does 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 ourselves
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 ancient 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 been 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 valleys of Piedmont; the gentleness
and faith of the two Marys 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 waive the bill of exclusion,
and not only admit him to reign as other kings have done, but resign the
whole power into 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 been 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, Samson, 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
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 been 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.
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 Switzerland. Amongst these every province, city or canton making a distinct body independent from any other, and exercising the sovereign power within itself, 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. 'Tis not so amongst us: Every county does not make a distinct body, having in itself a sovereign power, but is a member of that great body which comprehends the whole nation. 'Tis 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 everyone 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, 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 would 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 Achaeans, Aetolians, 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, Genoese, and Lucchesi, 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 everywhere, forbidding nations to give instructions to their delegates, they can do it nowhere. 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. 'Tis 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 does 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 itself 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 Castile did in the cortes held at Madrid, in the beginning of Charles
the fifth's 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
never granted anything 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, 'tis 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 examine 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 alleged 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 Brittany. 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 been diminished by such
means as suit better with the manners of pirates, than the laws of God
and nature. If England therefore do not still enjoy the same, we must have
been 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 entire 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 anything but turn
a man into a woman. Sir Thomas More, when Rich solicitor to K. Henry the
8th asked him, if the parliament might not make R. Rich king, said, that
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 'tis 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 been 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 been 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 itself, and profitable
to their country, cannot foresee what will be proposed when they are all
together; 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.
This embolden'd the court to think of making parliaments to be the instruments
of our slavery, which had in all ages past been the firmest pillars of
our liberty. There might have been 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, 'tis 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. 'Tis 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.
Writings of Algernon Sidney