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, 2 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, 3 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. 4 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. 5
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, 6 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 be corrected.
Our author’s book is so full of absurdities and contradictions, that it would be a rope of sand, if a continued series of frauds did not, like a string of poisons running through the whole, give it some consistence with itself, and shew it to be the work of one and the same hand. After having endeavoured to subvert the laws of God, nature, and nations, most especially our own, by abusing the Scriptures, falsely alleging the authority of many good writers, and seeking to obtrude upon mankind a universal law, that would take from every nation the right of constituting such governments within themselves as seem most convenient for them, and giving rules for the administration of such as they had established, he gives us a full view of his religion and morals, by destroying the force of the oath taken by our kings at their coronation. Others, says he, affirm that although laws of themselves do not bind kings, yet the oaths of kings at their coronation tie them to keep all the laws of their kingdoms. How far this is true, let us but examine the oath of the kings of England at their coronation, the words whereof are these. Art thou pleased to cause to be administered in all thy judgments, indifferent and upright justice, and to use discretion with mercy and verity? Art thou pleased that our upright laws and customs be observed, and dost thou promise that those shall be protected and maintained by thee? c. To which the king answers in the affirmative, being first demanded by the archbishop of Canterbury, Pleaseth it you to confirm and observe the laws and customs of the ancient times, granted from God by just and devout kings unto the English nation, by oath unto the said people, especially the laws, liberties and customs granted unto the clergy and laity by the famous King Edward? From this he infers, that the king is not to observe all laws, but such as are upright, because he finds evil laws mentione’d in the oath of Richard the 2d, which he swears to abolish: Now what laws are upright and what evil, who shall judge but the king? c. So that in effect the king doth swear to keep no laws but such as in his judgment are upright, c. And if he did strictly swear to observe all laws, he could not without perjury give his consent to the repealing or abrogating of any statute by act of parliament, c. And again, But let it be supposed for truth, that kings do swear to observe all laws of their kingdoms; yet no man can think it reason, that the kings should be more bound by their voluntary oaths than common persons: Now if a private person make a contract, either with oath or without oath, he is no farther bound than the equity and justice of the contract ties him; for a man may have relief against an unreasonable and unjust promise, if either deceit or error, force or fear induced him thereunto; or if it be hurtful or grievous in the performance, since the law in many cases gives the king a prerogative above common persons. 1 Lest I should be thought to insist upon small advantages, I will not oblige any man to shew where Filmer found this oath, nor observe the faults committed in the translation; but notwithstanding his false representation, I find enough for my purpose, and intend to take it in his own words. But first I shall take leave to remark, that those who for private interests addict themselves to the personal service of princes, tho to the ruin of their country, find it impossible to persuade mankind that kings may govern as they please, when all men know there are laws to direct and restrain them, unless they can make men believe they have their power from a universal and superior law; or that princes can attempt to dissolve the obligations laid upon them by the laws, which they so solemnly swear to observe, without rendering themselves detestable to God and man, and subject to the revenging hands of both, unless they can invalidate those oaths. Mr. Hobbes I think was the first, who very ingeniously contrived a compendious way of justifying the most abominable perjuries, and all the mischiefs ensuing thereupon, by pretending, that as the king’s oath is made to the people, the people may absolve him from the obligation; and that the people having conferred upon him all the power they had, he can do all that they could: he can therefore absolve himself, and is actually free, since he is so when he pleases. 2 This is only false in the minor: for the people not having conferred upon him all, but only a part of their power, that of absolving him remains in themselves, otherwise they would never have obliged him to take the oath. He cannot therefore absolve himself. The pope finds a help for this, and as Christ’s vicar pretends the power of absolution to be in him, and exercised it in absolving King John. But our author despairing to impose either of these upon our age and nation, with more impudence and less wit, would enervate all coronation-oaths by subjecting them to the discretion of the taker; whereas all men have hitherto thought their force to consist in the declared sense of those who give them. This doctrine is so new, that it surpasses the subtlety of the Schoolmen, who, as an ingenious person said of them, had minced oaths so fine, that a million of them, as well as angels, may stand upon the point of a needle; and were never yet equalled but by the Jesuits, who have overthrown them by mental reservations, which is so clearly demonstrated from their books, that it cannot be denied, but so horrible, that even those of their own order who have the least spark of common honesty condemn the practice. And one of them, being a gentleman of a good family, told me, he would go the next day and take all the oaths that should be offer’d, if he could satisfy his conscience in using any manner of equivocation or mental reservation; or that he might put any other sense upon them, than he knew to be intended by those who offer’d them. And if our author’s conscience were not more corrupted than that of the Jesuit, who had lived fifty years under the worst discipline that I think ever was in the world, I would ask him seriously, if he truly believe, that the nobility, clergy and commonalty of England, who have been always so zealous for their ancient laws, and so resolute in defending them, did mean no more by the oaths they so solemnly imposed, and upon which they laid so much weight, than that the king should swear to keep them, so far only as he should think fit. But he swears only to observe those that are upright, c. How can that be understood otherwise, than that those who give the oath, do declare their laws and customs to be upright and good, and he by taking the oath affirms them to be so? Or how can they be more precisely specified than by the ensuing clause, Granted from God by just and devout kings by oath, especially those of the famous King Edward? But, says he, by the same oath Richard the 2d was bound to abolish those that were evil. If any such had crept in through error, or been obtruded by malice, the evil being discovered and declared by the nobility and commons who were concerned, he was not to take advantage of them, or by his refusal to evade the abolition, but to join with his people in annulling them, according to the general clause of assenting to those quas vulgus elegerit. 3
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, 4 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 . 5 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.” 6 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.” 7 These words seem to have been contrived to be so full and strong propter duplicitatem regis, 8 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.” 9 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. 10 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. 11 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; 12 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; 13 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 meritis, sed sola liberalitate vestra unanimiter me convocastis, 14 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, 15 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 à sacerdotibus senioribus populi eligantur, the kings should be elected by the clergy and elders of the people. 16 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.
Tis hereupon usually objected, that kings do not come in by contract nor by oath, but are kings by, or according to proximity of blood, before they are crowned. Tho this be a bold proposition, I will not say ’tis universally false. ’Tis possible that in some places the rule of succession may be set down so precisely, that in some cases every man may be able to see and know the sense, as well as the person designed to be the successor: but before I acknowledge it to be universally true, I must desire to know what this rule of succession is, and from whence it draws its original.
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, 1 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 2 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, 3 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; 4 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. 5 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. 6
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. 7 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. 8 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. 9
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. 10 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, 11 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. 12
2. This matter was made more clear under the second race. 13 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. 14 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; 15 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, 16 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. 17 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. 18 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. 19 Nay this present king, 20 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. 21 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, 22 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 any other.
’Tis not only from religion, but from the law of nature, that we learn the necessity of standing to the agreements we make; and he who departs from the principle written in the hearts of men pactis standum, 1 seems to degenerate into a beast. Such as had virtue, tho without true religion, could tell us (as a brave and excellent Grecian did) that it was not necessary for him to live, but it was necessary to preserve his heart from deceit, and his tongue from falsehood. The Roman satirist carries the same notion to a great height, and affirms, that tho the worst of tyrants should command a man to be false and perjur’d, and back his injunction with the utmost of torments, he ought to prefer his integrity before his life. 2 And tho Filmer may be excused if he often mistake in matters of theology; yet his inclinations to Rome which he prefers before Geneva, might have led him to the principles in which the honest Romans lived, if he had not observed that such principles as make men honest and generous, do also make them lovers of liberty, and constant in the defence of their country: which savouring too much of a republican spirit, he prefers the morals of that city, since they are become more refined by the pious and charitable Jesuits, before those that were remarkable in them, as long as they retained any shadow of their ancient integrity, which admitted of no equivocations and detested prevarications, by that means preserving innocence in the hearts of private men for their inward contentment, and in civil societies for the publick good; which if once extinguish’d, mankind must necessarily fall into the condition Hobbes rightly calls bellum omnium contra omnes, 3 wherein no man can promise to himself any other wife, children or goods, than he can procure by his own sword.
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.
In the next place our author gravely proposes a question, Whether it be a sin to disobey the king, if he command anything contrary to law? and as gravely determines, that not only in human laws, but even in divine, a thing may be commanded contrary to law, and yet obedience to such a command is necessary. The sanctifying of the Sabbath is a divine law, yet if a master command his servant not to go to church upon a Sabbath day, the best divines teach us, the servant must obey, c. It is not fit to tie the master to acquaint the servant with his secret counsel. 1 Tho he frequently contradicts in one line what he says in another, this whole clause is uniform and suitable to the main design of his book. He sets up the authority of man in opposition to the command of God, gives it the preference, and says, the best divines instruct us so to do. St. Paul then must have been one of the worst, for he knew that the powers under which he lived, had under the severest penalties forbidden the publication of the Gospel; and yet he says, Woe to me if I preach it not. St. Peter was no better than he, for he tells us, That it is better to obey God than man: and they could not speak otherwise, unless they had forgotten the words of their master, who told them, They should not fear them that could only kill the body, but him who could kill and cast into hell. 2 And if I must not fear him that can only kill the body, not only the reason, but all excuse for obeying him is taken away.
To prove what he says, he cites a pertinent example from St. Luke, 3 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, 4 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 by perjury.
That we may not be displeased, or think it dangerous and slavish to depend upon the will of a man, which perhaps may be irregular or extravagant in one who is subject to no law, our author very dexterously removes the scruples by telling us,
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. 2 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, 3 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; 4 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, 5 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: 6 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. 7 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; 8 yet Theodosius confessed, that it was the glory of a good emperor to acknowledge himself bound by them. 9
Our author’s next shift is to place the king above the law, that he may mitigate the rigour of it, without which he says, The case of the subject would be desperately miserable. 1 But this cure would prove worse than the disease. Such pious fathers of the people as Caligula, Nero or Domitian, were not like to mitigate the rigour; nor such as inherit crowns in their infancy (as the present kings of Spain, France and Sweden) 2 so well to understand the meaning of it as to decide extraordinary cases. The wisdom of nations has provided more assured helps; and none could have been so brutish and negligent of the publick concernments, to suffer the succession to fall to women, children, c. if they had not reserved a power in themselves to prefer others before the nearest in blood, if reason require; and prescribed such rules as might preserve the publick from ruin, notwithstanding their infirmities and vices. These helps provided by our laws, are principally by grand and petty juries, who are not only judges of matters of fact, as whether a man be kill’d, but whether he be kill’d criminally. These men are upon their oaths, and may be indicted of perjury if they prevaricate: The judges are present, not only to be a check upon them, but to explain such points of the law as may seem difficult. And tho these judges may be said in some sense to be chosen by the king, he is not understood to do it otherwise than by the advice of his council, who cannot perform their duty, unless they propose such as in their consciences they think most worthy of the office, and most capable of performing the duty rightly; nor he accomplish the oath of his coronation, unless he admit those, who upon deliberation seem to be the best. The judges being thus chosen, are so far from depending upon the will of the king, that they swear faithfully to serve the people as well as the king, and to do justice to every man according to the law of the land, notwithstanding any writs, letters or commands received from him; and in default thereof they are to forfeit their bodies, lands and goods, as in cases of treason. 3 These laws have been so often, and so severely executed, that it concerns all judges well to consider them; and the cases of Tresilian, Empson, Dudley, and others shew, that neither the king’s preceding command nor subsequent pardon could preserve them from the punishment they deserved. All men knew that what they did was agreeable to the king’s pleasure, for Tresilian advanced the prerogative of Edward the 2d, and Empson brought great treasures into the coffers of Henry the 7th. Nevertheless they were charged with treason, for subverting the laws of the land, and executed as traitors. Tho England ought never to forget the happy reign of Q. Elizabeth, yet it must be acknowledged, that she as well as others had her failings. She was full of love to the people, just in her nature, sincere in her intentions; but could not so perfectly discover the snares that were laid for her, or resist the importunity of the persons she most trusted, as not sometimes to be brought to attempt things against law. She and her counsellors pressed the judges very hardly to obey the patent under her great seal, in the case of Cavendish: but they answered, That both she and they had taken an oath to keep the law, and if they should obey her commands, the law would not warrant them, c. And besides the offence against God, their country, and the commonwealth, they alleged the example of Empson and Dudley, whereby, they said, they were deterred from obeying her illegal commands. 4 They who had sworn to keep the law notwithstanding the king’s writs, knew that the law depended not upon his will; and the same oath that obliged them not to regard any command they should receive from him, shewed that they were not to expect indemnity by it, and not only that the king had neither the power of making, altering, mitigating or interpreting the law, but that he was not at all to be heard, in general or particular matters, otherwise than as he speaks in the common course of justice, by the courts legally established, which say the same thing, whether he be young or old, ignorant or wise, wicked or good: and nothing does better evidence the wisdom and care of our ancestors, in framing the laws and government we live under, than that the people did not suffer extremities by the vices or infirmities of kings, till an age more full of malice than those in which they lived, had found tricks to pervert the rule, and frustrate their honest intentions. It was not safe for the kings to violate their oaths by an undue interposition of their authority; but the ministers who served them in those violations, have seldom escaped punishment. This is to be understood when the deviations from justice are extreme and mischievous, for something must always be allow’d to human frailty: The best have their defects, and none could stand if a too exact scrutiny were made of all their actions. Edward the third, about the twentieth year of his reign, acknowledged his own in parliament, and as well for the ease of his conscience, as the satisfaction of his people, promoted an act, Commanding all judges to do justice, notwithstanding any writs, letters or commands from himself, and forbidding those that belonged to the king, queen and prince, to intermeddle in those matters. 5 But if the best and wisest of our princes, in the strength and maturity of their years, had their failings, and every act proceeding from them that tended to the interruption of justice was a failing, how can it be said that the king in his personal capacity, directly or indirectly, may enter into the discussion of these matters, much less to determine them according to his will?
But, says our author, the law is no better than a tyrant; general pardons at the coronation and in parliament, are but the bounty of the prerogative, c. There may be hard cases; and citing some perverted pieces from Aristotle’s Ethicks and Politicks, adds, That when something falls out besides the general rule, then it is fit that what the lawmaker hath omitted, or where he hath erred by speaking generally, it should be corrected and supplied, as if the lawmaker were present that ordained it. The governor, whether he be one man or more, ought to be lord of these things, whereof it was impossible that the law should speak exactly. 6 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, 7 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: 8 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. 9 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 make them.
Our author having falsely cited and perverted the sense of Aristotle, now brings him in saying, That a perfect kingdom is that wherein the king rules all according to his own will . 1 But tho I have read his books of government with some attention, I can find no such thing in them, unless the word which signifies mere or absolute may be justly translated into perfect; which is so far from Aristotle’s meaning, that he distinguishes the absolute or despotical kingdoms from the legitimate; and commending the latter, gives no better name than that of barbarous to the first, which he says can agree only with the nature of such nations as are base and stupid, little differing from beasts; and having no skill to govern, or courage to defend themselves, must resign all to the will of one that will take care of them. Yet even this cannot be done, unless he that should take that care be wholly exempted from the vices which oblige the others to stand in need of it; for otherwise ’tis no better than if a sheep should undertake to govern sheep, or a hog to command swine; Aristotle plainly saying, That as men are by nature equal, if it were possible all should be magistrates. But that being repugnant to the nature of government, he finds no other way of solving the difficulty, than by obeying and commanding alternately; that they may do by turns that which they cannot do all together, and to which no one man has more right than another, because they are all by nature equal. 2 This might be composed by a more compendious way, if, according to our author’s doctrine, possession could give a right. But Aristotle speaking like a philosopher, and not like a publick enemy of mankind, examines what is just, reasonable, and beneficial to men, that is, what ought to be done, and which being done, is to be accounted just, and therefore to be supported by good men. But as that which is unjust in the beginning, can never have the effect of justice; 3 and it being manifestly unjust for one or a few men to assume a power over those who by nature are equal to them, no such power can be just or beneficial to mankind; nor fit to be upheld by good men, if it be unjust and prejudicial. In the opinion of Aristotle, this natural equality continues till virtue makes the distinction, which must be either simply compleat and perfect in itself, so that he who is endued with it, is a god among men, or relatively, as far as concerns civil society, and the ends for which it is constituted, that is, defence, and the obtaining of justice. This requires a mind unbiased by passion, full of goodness and wisdom, firm against all the temptations to ill, that may arise from desire or fear; tending to all manner of good, through a perfect knowledge and affection to it; and this to such a degree, that he or they have more of these virtues and excellencies than all the rest of the society, tho computed together: Where such a man is found, he is by nature a king, and ’tis best for the nation where he is that he govern. 4 If a few men, tho equal and alike among themselves, have the same advantages above the rest of the people, nature for the same reason seems to establish an aristocracy in that place; and the power is more safely committed to them, than left in the hands of the multitude. But if this excellency of virtue do not appear in one, nor in a few men, the right and power is by nature equally lodged in all; and to assume or appropriate that power to one, or a few men, is unnatural and tyrannical, which in Aristotle’s language comprehends all that is detestable and abominable.
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. 5 And he who assumes the same power, without the qualifications requir’d, is tyrannus omnium pessimus, 6 leading the people to all manner of ill, and in consequence to destruction.
Our author’s next instance is ingeniously taken from the Romans, Who, he says, tho they were a people greedy of liberty, freed Augustus from the necessity of laws. 1 If it be true, as he affirms, that such a prerogative is instituted only for the preservation of liberty, they who are most greedy of it, ought to be most forward in establishing that which defends it best. But if the weight laid upon the words greedy of liberty, c. render his memory and judgment liable to censure, the unpardonable prevarication of citing any act done by the Romans in the time of Augustus, as done freely, shews him to be a man of no faith. Omnium jura in se traxerat, says Tacitus of Augustus; 2 nothing was conferred upon him, he took all to himself; there could be nothing of right in that which was wholly usurped. And neither the people or the senate could do anything freely, whilst they were under the power of a mad corrupted soldiery, who first betray’d, and then subdued them. The greatest part of the senate had fall’n at the battle of Pharsalia, others had been gleaned up in several places, the rest destroy’d by the proscriptions; and that which then retained the name of a senate, was made up chiefly of those who had been his ministers, in bringing the most miserable slavery upon their own country. The Roman liberty, and that bravery of spirit by which it had been maintained, was not only abolished, but almost forgotten. All consideration of law and right was trampled under foot; and none could dispute with him, who by the power of the sword had seiz’d the authority both of the senate and people. Nothing was so extravagant, that might not be extorted by the insolent violence of a conqueror, who had thirty mercenary legions to execute his commands. The uncorrupted part of the people that had escaped the sword of Julius, had either perished with Hirtius and Pansa, Brutus and Cassius, or been destroy’d by the detestable triumvirate. Those that remain’d could lose nothing by a verbal resignation of their liberty, which they had neither strength nor courage to defend. The magistracies were possess’d by the creatures of the tyrant; and the people was composed of such as were either born under slavery, and accustomed to obey, or remain’d under the terror of those arms that had consumed the assertors of their liberty. Our author standing in need of some Roman example was obliged to seek it in an age, when the laws were subverted, virtue extinguished, injustice placed in the throne, and such as would not be of the same spirit, exposed to the utmost cruelty. This was the time when the sovereign majesty shined in glory; and they who had raised it above the law, made it also the object of their religion, by adoring the statues of their oppressor. The corruption of this court spread itself over the best part of the world; and reduced the empire to that irrecoverable weakness in which it languished and perish’d. This is the state of things that pleases Filmer, and those that are like him, who for the introduction of the same among us, recommend such an elevation of the sovereign majesty, as is most contrary to the laws of God and men, abhorred by all generous nations, and most especially by our ancestors, who thought nothing too dear to be hazarded in the defence of themselves and us from it.
Truth being uniform in itself, those who desire to propagate it for the good of mankind, lay the foundations of their reasonings in such principles, as are either evident to common sense, or easily proved: but cheats and impostors delighting in obscurity, suppose things that are dubious or false, and think to build one falsehood upon another; and our author can find no better way to persuade us, that all our privileges and laws are from the king, than by saying, That the first power was the kingly power, which was both in this and all other nations in the world, long before any laws or any other kind of government was thought of; from whence we must necessarily infer, that the common law, or common customs of this land were originally the laws and commands of the king. 1 But denying both these points, I affirm,
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: 2 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, 3 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. 4 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; 5 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. 6 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, 7 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, 8 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: 9 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. 10 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, 11 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.
I confess that no law can be so perfect, to provide exactly for every case that may fall out, so as to leave nothing to the discretion of the judges, who in some measure are to interpret them: But that laws or customs are ever few, or that the paucity is the reason that they cannot give special rules, or that judges do resort to those principles or common law axioms, whereupon former judgments in cases something alike have been given by former judges, who all receive their authority from the king in his right to give sentence, 1 I utterly deny; and affirm,
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 ret non alius, si solus ad haec sufficere possit; cum ad hoc per virtutem sacramenti teneatur, 8 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. 9 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. 10 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: 11 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. 12 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; 13 which cannot but affect the king as well as those who are chosen by him. If he neglect the functions of his office, he does unjustly, and becomes the vicegerent of the Devil; for he is the minister of him whose works he does. 14 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, 15 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, 16 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.