This is farther evidenced by what passed in the Tower between Sir Thomas More and Rich the king’s solicitor, who asking, if it would not be treason to oppose Richard Rich, if the parliament should make him king, More said that was casus levis; 17 for the parliament could make and depose kings as they thought fit; and then (as more conducing to his own case) asked Rich if the parliament should enact that God should not be God, whether such as did not submit should be esteemed traitors? 18 ’Tis evident that a man of the acuteness and learning of Sir Tho. More would not have made use of such an argument to avoid the necessity of obeying what the parliament had ordained, by shewing his case to be of a nature far above the power of man, unless it had been confessed by all men that the parliament could do whatsoever lay within the reach of human power. This may be enough to prove that the king cannot have a power over the law; and if he has it not, the power of interpreting laws is absurdly attributed to him, since it is founded upon a supposition that he can make them, which is false.
I agree with our author that Magna Charta was not made to restrain the absolute authority; 1 for no such thing was in being or pretended (the folly of such visions seeming to have been reserved to complete the misfortunes and ignominy of our age) but it was to assert the native and original liberties of our nation by the confession of the king then being, that neither he nor his successors should any way encroach upon them: and it cannot be said that the power of kings is diminished by that or any other law; for as they are kings only by law, the law may confer power upon one in particular, or upon him and his successors, but can take nothing from them, because they have nothing except what is given to them. But as that which the law gives, is given by those who make the law, they only are capable of judging, whether he to whom they gave it, do well or ill employ that power, and consequently are only fit to correct the defects that may be found in it. Therefore tho I should confess that faults may be found in many statutes, and that the whole body of them is greatly defective, it will not follow that the compendious way of referring all to the will of the king should be taken. But what defects soever may be in our law, the disease is not so great to require extreme remedies, and we may hope for a cheaper cure. Our law may possibly have given away too much from the people, and provided only insufficient defences of our liberties against the encroachments of bad princes; but none who are not in judgment and honesty like to our author, can propose for a remedy to the evils that proceed from the error of giving too much, the resignation of all the rest to them. Whatever he says, ’tis evident that he knows this to be true, when, tho he denies that the power of kings can be restrained by acts of parliament, he endeavours to take advantage of such clauses as were either fraudulently inserted by the king’s officers, who till the days of Henry the fifth for the most part had the penning of the publick acts, or through negligence did not fully explain the intentions of the legislators; which would be to no purpose if all were put into the hands of the king by a general law from God, that no human power could diminish or enlarge; and as his last shift would obliquely put all into the power of the king by giving him a right of interpreting the law, and judging such cases as are not clearly decided; which would be equally impertinent, if he had openly and plainly a right of determining all things according to his will.
But what defects soever may be in any statutes, no great inconveniences could probably ensue, if that for annual parliaments was observed, as of right it ought to be. Nothing is more unlikely, than that a great assembly of eminent and chosen men should make a law evidently destructive to their own designs; and no mischief that might emerge upon the discovery of a mistake, could be so extreme that the cure might not be deferr’d till the meeting of the parliament, or at least forty days (in which time the king may call one) if that which the law has fixed seem to be too long. If he fail of this, he performs not his trust; and he that would reward such a breach of it with a vast and uncontrollable power, may be justly thought equal in madness to our author, who by forbidding us to examine the titles of kings, and enjoining an entire veneration of the power, by what means soever obtained, 2 encourages the worst of men to murder the best of princes, with an assurance that if they prosper they shall enjoy all the honors and advantages that this world can afford.
Princes are not much more beholden to him for the haughty language he puts into their mouths, it having been observed that the worst are always most ready to use it; and their extravagances having been often chastised by law, sufficiently proves, that their power is not derived from a higher original than the law of their own countries.
If it were true, that the answer sometimes given by kings to bills presented for their assent, did, as our author says, amount to a denial, 3 it could only shew that they have a negative voice upon that which is agreed by the parliament, and is far from a power of acting by themselves, being only a check upon the other parts of the government. But indeed it is no more than an elusion; and he that does by art obliquely elude, confesses he has not a right absolutely to refuse. ’Tis natural to kings, especially to the worst, to screw up their authority to the height; and nothing can more evidently prove the defect of it, than the necessity of having recourse to such pitiful evasions, when they are unwilling to do that which is required. But if I should grant that the words import a denial, and that (notwithstanding those of the coronation oath, quas vulgus elegerit 4 ) they might deny; no more could be inferred from thence, than that they are entrusted with a power equal in that point, to that of either house, and cannot be supreme in our author’s sense, unless there were in the same state at the same time three distinct supreme and absolute powers, which is absurd.
His cases relating to the proceedings of the Star-Chamber and Council-Table, do only prove that some kings have encroached upon the rights of the nation, and been suffer’d till their excesses growing to be extreme, they turn’d to the ruin of the ministers that advised them, and sometimes of the kings themselves. But the jurisdiction of the Council having been regulated by the statute of the 17 Car. I. 5 and the Star-Chamber more lately abolished, they are nothing to our dispute.
Such as our author usually impute to treason and rebellion the changes that upon such occasions have ensued; but all impartial men do not only justify them, but acknowledge that all the crowns of Europe are at this day enjoy’d by no other title than such acts solemnly performed by the respective nations, who either disliking the person that pretended to the crown (tho next in blood) or the government of the present possessor, have thought fit to prefer another person or family. They also say, that as no government can be so perfect but some defect may be originally in it, or afterwards introduced, none can subsist unless they be from time to time reduced to their first integrity, by such an exertion of the power of those for whose sake they were instituted, as may plainly shew them to be subject to no power under heaven, but may do whatever appears to be for their own good. And as the safety of all nations consists in rightly placing and measuring this power, such have been found always to prosper who have given it to those from whom usurpations were least to be feared, who have been least subject to be awed, cheated or corrupted; and who having the greatest interest in the nation, were most concerned to preserve its power, liberty and welfare. This is the greatest trust that can be reposed in men. This power was by the Spartans given to the ephori and the senate of twenty eight; in Venice to that which they call Concilio de Pregadi; in Germany, Spain, France, Sweden, Denmark, Poland, Hungary, Bohemia, Scotland, England, and generally all the nations that have lived under the Gothick polity, it has been in their general assemblies, under the names of diets, cortes, parliaments, senates, and the like. But in what hands soever it is, the power of making, abrogating, changing, correcting and interpreting laws, has been in the same; kings have been rejected or deposed; the succession of the crown settled, regulated, or changed: and I defy any man to shew me one king amongst all the nations abovementioned, that has any right to the crown he wears, unless such acts are good.
If this power be not well placed, or rightly proportioned to that which is given to other magistrates, the state must necessarily fall into great disorders, or the most violent and dangerous means must be frequently used to preserve their liberty. Sparta and Venice have rarely been put to that trouble, because the senates were so much above the kings and dukes in power, that they could without difficulty bring them to reason. The Gothick kings in Spain never ventur’d to dispute with the nobility; and Witiza and Rodrigo exposed the kingdom as a prey to the Moors, rather by weakening it through the neglect of military discipline, joined to their own ignorance and cowardice, and by evil example bringing the youth to resemble them in lewdness and baseness, than by establishing in themselves a power above the law. But in England our ancestors who seem to have had some such thing in their eye, as balancing the powers, by a fatal mistake placed usually so much in the hands of the king, that whensoever he happened to be bad, his extravagances could not be repress’d without great danger. And as this has in several ages cost the nation a vast proportion of generous blood, so ’tis the cause of our present difficulties, and threatens us with more, but can never deprive us of the rights we inherit from our fathers.
Having proved that the people of England have never acknowledged any other human law than their own, and that our parliaments having the power of making and abrogating laws, they only can interpret them and decide hard cases, it plainly appears there can be no truth in our author’s assertion, that the king is the author, corrector and moderator of both statute and common law: and nothing can be more frivolous than what he adds, that neither of them can be a diminution of that natural power which kings have over their people as fathers; 1 in as much as the differences between paternal and monarchical power (as he asserts it) are vast and irreconcilable in principle and practice, as I have proved at large in the former parts of this work.
But lest we should be too proud of the honour he is pleased to do to our parliaments by making use of their authority, he says, We are first to remember that till the conquest (which name for the glory of our nation he gives to the coming in of the Normans) there could be no parliament assembled of the general states, because we cannot learn that until those days it was entirely united in one. Secondly he doubts, Whether the parliament in the time of the Saxons were composed of the nobility and clergy, or whether the commons were also called; but concludes, there could be no knights of any shires, because there were no shires. Thirdly, That Henry the first caused the commons first to assemble knights and burgesses of their own chusing; and would make this to be an act of grace and favour from that king: but adds, that it had been more for the honour of parliaments, if a king whose title to the crown had been better, had been the author of the form of it. 2
In answer to the first, I do not think myself obliged to insist upon the name or form of the parliament; for the authority of a magistracy proceeds not from the number of years that it has continued, but the rectitude of the institution, and the authority of those that instituted it. The power of Saul, David and Jeroboam, was the same with that which belonged to the last kings of Israel and Judah. The authority of the Roman consuls, dictators, praetors and tribunes, was the same as soon as it was established; was as legal and just as that of the kings of Denmark, which is said to have continued above three thousand years. For as time can make nothing lawful or just, that is not so of itself (tho men are unwilling to change that which has pleased their ancestors, unless they discover great inconveniences in it) that which a people does rightly establish for their own good, is of as much force the first day, as continuance can ever give to it: and therefore in matters of the greatest importance, wise and good men do not so much inquire what has been, as what is good and ought to be; for that which of itself is evil, by continuance is made worse, and upon the first opportunity is justly to be abolished. But if that liberty in which God created man, can receive any strength from continuance, and the rights of Englishmen can be render’d more unquestionable by prescription, I say that the nations whose rights we inherit, have ever enjoy’d the liberties we claim, and always exercised them in governing themselves popularly, or by such representatives as have been instituted by themselves, from the time they were first known in the world.
The Britains and Saxons lay so long hid in the obscurity that accompanies barbarism, that ’tis in vain to seek what was done by either in any writers more ancient than Caesar and Tacitus. The first describes the Britains to have been a fierce people zealous for liberty, and so obstinately valiant in the defence of it, that tho they wanted skill, and were overpower’d by the Romans, their country could no otherwise be subdued, than by the slaughter of all the inhabitants that were able to bear arms. He calls them a free people, in as much as they were not like the Gauls, governed by laws made by the great men, but by the people. In his time they chose Cassivellaunus, and afterwards Caratacus, Arviragus, Galgacus, and others to command them in their wars, but they retain’d the government in themselves. That no force might be put upon them, they met arm’d in their general assemblies; and tho the smaller matters were left to the determination of the chief men chosen by themselves for that purpose, they reserved the most important (amongst which the chusing of those men was one) to themselves. When the Romans had brought them low, they set up certain kings to govern such as were within their territories: 3 but those who defended themselves by the natural strength of their situation, or retired into the north, or the islands, were still governed by their own customs, and were never acquainted with domestick or foreign slavery. The Saxons, from whom we chiefly derive our original and manners, were no less lovers of liberty, and better understood the ways of defending it. They were certainly the most powerful and valiant people of Germany; and what the Germans performed under Ariovistus, Arminius and Maroboduus, shews both their force and their temper. If ever fear enter’d into the heart of Caesar, it seems to have been when he was to deal with Ariovistus. The advantages that the brave Germanicus obtained against Arminius, were at least thought equal to the greatest victories that had been gain’d by any Roman captain; because these nations fought not for riches, or any instruments of luxury and pleasure, which they despised, but for liberty. This was the principle in which they lived, as appears by their words and actions; so that Arminius when his brother Flavius, who served the Romans, boasted of the increase of his pay, and the marks of honour he had received, in scorn call’d them the rewards of the vilest servitude; 4 but when he himself endeavour’d to usurp a power over the liberty of his country which he had so bravely defended, he was killed by those he would have oppress’d. Tacitus farther describing the nature of the Germans, shews that the Romans had run greater hazards from them than from the Samnites, Carthaginians and Parthians, and attributes their bravery to the liberty they enjoyed; 5 for they are, says he, neither exhausted by tributes, nor vexed by publicans: 6 and lest this liberty should be violated, the chief men consult about things of lesser moment; but the most important matters are determined by all. 7 Whoever would know the opinion of that wise author concerning the German liberty, may read his excellent treatise concerning their manners and customs; but I presume this may be enough to prove that they lived free under such magistrates as they chose, regulated by such laws as they made, and retained the principal powers of the government in their general or particular councils. Their kings and princes had no other power than was conferred upon them by these assemblies, who having all in themselves could receive nothing from them, who had nothing to give. 8
’Tis as easily proved that the Saxons or Angles, from whom we descend, were eminent among those, whose power, virtue, and love to liberty the abovementioned historian so highly extols, in as much as besides what he says in general of the Saxons, he names the Angles; describes their habitation near the Elbe, and their religious worship of the goddess Erthum, or the earth, celebrated in an island lying in the mouth of that river, thought to be Heligoland; in resemblance of which a small one lying over against Berwick, is called Holy Island. If they were free in their own country, they must be so when they came hither. The manner of their coming shews they were more likely to impose, than submit to slavery; and if they had not the name of parliament, it was because they did not speak French; or, not being yet joined with the Normans, they had not thought fit to put their affairs into that method: but having the root of power and liberty in themselves, they could not but have a right of establishing the one in such a form as best pleased them, for the preservation of the other.
This being, as I suppose, undeniable, it imports not whether the assemblies in which the supreme power of each nation did reside, were frequent or rare; composed of many or few persons, sitting altogether in one place, or in more; what name they had; or whether every free man did meet and vote in his own person, or a few were delegated by many. For they who have a right inherent in themselves, may resign it to others; and they who can give a power to others, may exercise it themselves, unless they recede from it by their own act; for it is only matter of convenience, of which they alone can be the judges, because ’tis for themselves only that they judge. If this were not so, it would be very prejudicial to kings: for ’tis certain that Cassivellaunus, Caratacus, Arviragus, Galgacus, Hengist, Horsa, and others amongst the Britains and Saxons, what name soever may have been abusively given to them, were only temporary magistrates chosen upon occasion of present wars; but we know of no time in which the Britains had not their great council to determine their most important affairs: and the Saxons in their own country had their councils, where all were present, and in which Tacitus assures us they dispatched their greatest business. These were the same with the micklegemotes which they afterwards held here, and might have been called by the same name, if Tacitus had spoken Dutch. 9
If a people therefore have not a power to create at any time a magistracy which they had not before, none could be created at all, for no magistracy is eternal: And if for the validity of the constitution it be necessary, that the beginning must be unknown, or that no other could have been before it, the monarchy amongst us cannot be established upon any right; for tho our ancestors had their councils and magistrates, as well here as in Germany, they had no monarchs. This appears plainly by the testimony of Caesar and Tacitus; and our later histories show, that as soon as the Saxons came into this country, they had their micklegemotes, which were general assemblies of the noble and free men, who had in themselves the power of the nation: and tho when they increased in numbers, they erected seven kingdoms, yet every one retained the same usage within itself. These assemblies were evidently the same in power with our parliaments; and tho they differ’d in name or form, it matters not, for they who could act in the one, could not but have a power of instituting the other; that is, the same people that could meet together in their own persons, and according to their own pleasure order all matters relating to themselves, whilst three or four counties only were under one government, and their numbers were not so great, or their habitation so far distant, that they might not meet altogether without inconvenience, with the same right might depute others to represent them, when being joined in one, no place was capable of receiving so great a multitude, and that the frontiers would have been exposed to the danger of foreign invasions, if any such thing had been practiced.
But if the authority of parliaments, for many ages representing the whole nation, were less to be valued (as our author insinuates) because they could not represent the whole, when it was not joined in one body, that of kings must come to nothing; for there could be no one king over all, when the nation was divided into seven distinct governments: And ’tis most absurd to think that the nation, which had seven great councils, or micklegemotes, at the same time they had seven kingdoms, could not as well unite the seven councils as the seven kingdoms into one. ’Tis to as little purpose to say, that the nation did not unite itself, but the several parcels came to be inherited by one; for that one could inherit no more from the others than what they had; and the seven being only magistrates set up by the micklegemotes, c. the one must be so also. And ’tis neither reasonable to imagine, nor possible to prove, that a fierce nation, jealous of liberty, and who had obstinately defended it in Germany against all invaders, should conquer this country to enslave themselves, and purchase nothing by their valour but that servitude which they abhorred; or be less free when they were united into one state, than they had been when they were divided into seven; and least of all, that one man could first subdue his own people, and then all the rest, when by endeavouring to subdue his own, he had broken the trust reposed in him, and lost the right conferred upon him, and without them had not power to subdue any. But as it is my fate almost ever to dissent from our author, I affirm, that the variety of government, which is observed to have been amongst the Saxons, who in some ages were divided, in others united; sometimes under captains, in other times under kings; sometimes meeting personally in the micklegemotes, sometimes by their delegates in the witenagemotes, does evidently testify, that they ordered all things according to their own pleasure; which being the utmost act of liberty, it remained inviolable under all those changes, as we have already proved by the confession of Offa, Ine, Alfred, Canute, Edward, and other particular, as well as universal kings: And we may be sure those of the Norman race can have no more power, since they came in by the same way, and swore to govern by the same laws.
2. I am no way concerned in our author’s doubt, Whether parliaments did in those days consist of nobility and clergy; or whether the commons were also called. For if it were true, as he asserts, that according to the eternal law of God and nature, there can be no government in the world but that of an absolute monarch, whose sovereign majesty can be diminished by no law or custom, there could be no parliaments, or other magistracies, that did not derive their power and being from his will. But having proved that the Saxons had their general councils and assemblies when they had no kings; that by them kings were made, and the greatest affairs determined, whether they had kings or not; it can be of no importance, whether in one or more ages the commons had a part in the government, or not. For the same power that instituted a parliament without them, might, when they thought fit, receive them into it: or rather, if they who had the government in their hands, did, for reasons known to themselves, recede from the exercise of it, they might resume it when they pleased.
Nevertheless it may be worth our pains to enquire, what our author means by nobility. If such, as at this day by means of patents obtained for money, or by favour, without any regard to merit in the persons or their ancestors, are called dukes, marquesses, c. I give him leave to impute as late and base an original to them as he pleases, without fearing that the rights of our nation can thereby be impaired; and am content, that if the king do not think fit to support the dignity of his own creatures, they may fall to the ground. But if by noblemen we are to understand such as have been ennobled by the virtues of their ancestors, manifested in services done to their country, I say, that all nations, amongst whom virtue has been esteemed, have had a great regard to them and their posterity: And tho kings, when they were made, have been intrusted by the Saxons, and other nations, with a power of ennobling those who by services render’d to their country might deserve that honor; yet the body of the nobility was more ancient than such; for it had been equally impossible to take kings (according to Tacitus) out of the nobility if there had been no nobility, as to take captains for their virtue if there had been no virtue; 10 and princes could not, without breach of that trust, confer honors upon those that did not deserve them; which is so true, that this practice was objected as the greatest crime against Vortigern, the last and the worst of the British kings: 11 and tho he might pretend (according to such cavils as are usual in our time) that the judgment of those matters was referred to him; yet the world judged of his crimes, and when he had render’d himself odious to God and men by them, he perished in them, and brought destruction upon his country that had suffer’d them too long.
As among the Turks, and most of the Eastern tyrannies, there is no nobility, and no man has any considerable advantage above the common people, unless by the immediate favour of the prince; so in all the legal kingdoms of the North, the strength of the government has always been placed in the nobility; and no better defence has been found against the encroachments of ill kings, than by setting up an order of men, who by holding large territories, and having great numbers of tenants and dependents, might be able to restrain the exorbitances, that either the kings or the commons might run into. For this end Spain, Germany, France, Poland, Denmark, Sweden, Scotland and England, were almost wholly divided into lordships under several names, by which every particular possessor owed allegiance (that is, such an obedience as the law requires) to the king, and he reciprocally swore to perform that which the same law exacted from him.
When these nations were converted to the Christian religion, they had a great veneration for the clergy; and not doubting that the men whom they esteemed holy, would be just, thought their liberties could not be better secured, than by joining those who had the direction of their consciences, to the noblemen who had the command of their forces. This succeeded so well (in relation to the defence of the publick rights) that in all the forementioned states, the bishops, abbots, c. were no less zealous or bold in defending the publick liberty, than the best and greatest of the lords: And if it were true, that things being thus established, the commons did neither personally, nor by their representatives, enter into the general assemblies, it could be of no advantage to kings; for such a power as is above-mentioned, is equally inconsistent with the absolute sovereignty of kings, if placed in the nobility and clergy, as if the commons had a part. If the king has all, no other man, nor number of men can have any. If the nobility and clergy have the power, the commons may have their share also. But I affirm, that those whom we now call commons, have always had a part in the government, and their place in the councils that managed it; for if there was a distinction, it must have been by patent, birth, or tenure.
As for patents, we know they began long after the coming of the Normans, and those that now have them cannot pretend to any advantage on account of birth or tenure, beyond many of those who have them not. Nay, besides the several branches of the families that now enjoy the most ancient honors, which consequently are as noble as they, and some of them of the elder houses, we know many that are now called commoners, who in antiquity and eminency are no way inferior to the chief of the titular nobility: and nothing can be more absurd, than to give a prerogative of birth to Cr-v-n, T-ft-n, H-de, B-nnt, Osb-rn, 12 and others, before the Cliftons, Hampdens, Courtneys, Pelhams, St. Johns, Baintons, Wilbrahams, Hungerfords, and many others. 13 And if the tenures of their estates be consider’d, they have the same, and as ancient as any of those who go under the names of duke, or marquess. I forbear to mention the sordid ways of attaining to titles in our days; but whoever will take the pains to examine them, shall find that they rather defile than ennoble the possessors. And whereas men are truly ennobled only by virtue, and respect is due to such as are descended from those who have bravely serv’d their country, because it is presumed (till they shew the contrary) that they will resemble their ancestors, these modern courtiers, by their names and titles, frequently oblige us to call to mind such things as are not to be mentioned without blushing. Whatever the ancient noblemen of England were, we are sure they were not such as these. And tho it should be confess’d that no others than dukes, marquesses, earls, viscounts, and barons, had their places in the councils mentioned by Caesar and Tacitus, or in the great assemblies of the Saxons, it could be of no advantage to such as now are called by those names. They were the titles of offices conferred upon those, who did and could best conduct the people in time of war, give counsel to the king, administer justice, and perform other publick duties; but were never made hereditary except by abuse; much less were they sold for money, or given as recompences of the vilest services. If the ancient order be totally inverted, and the ends of its institution perverted, they who from thence pretend to be distinguished from other men, must build their claim upon something very different from antiquity.
This being sufficient (if I mistake not) to make it appear, that the ancient councils of our nation did not consist of such as we now call noblemen, it may be worth our pains to examine, of what sort of men they did consist: And tho I cannot much rely upon the credit of Camden, which he has forfeited by a great number of untruths, I will begin with him, because he is cited by our author. 14 If we will believe him, That which the Saxons called witenagemote, we may justly name parliament, which has the supreme and most sacred authority of making, abrogating and interpreting laws, and generally of all things relating to the safety of the commonwealth. 15 This witenagemote was, according to William of Malmesbury, The general meeting of the senate and people; 16 and Sir Harry Spelman calls it, The general council of the clergy and people. 17 In the assembly at Calchuth it was decreed by the archbishops, bishops, abbots, dukes, senators, and the people of the land ( populo terrae ) that the kings should be elected by the priests and elders of the people. 18 By these Offa, Ine, and others, were made kings; and Alfred in his will acknowledged his crown from them. 19 Edgar was elected by all the people, and not long after deposed by them, and again restored in a general assembly. 20 These things being sometimes said to be done by the assent of the barons of the kingdom, Camden says, that under the name of the baronage, all the orders of the kingdom are in a manner comprehended; 21 and it cannot be otherwise understood, if we consider that those called noblemen, or the nobility of England, are often by the historians said to be ( infinita multitudo ) an infinite multitude.
If any man ask how the nobility came to be so numerous; I answer, that the Northern nations, who were perpetually in arms, put a high esteem upon military valour; sought by conquest to acquire better countries than their own; valu’d themselves according to the numbers of men they could bring into the field; and to distinguish them from villains, called those noblemen, who nobly defended and enlarged their dominions by war; and for a reward of their services, in the division of lands gained by conquest, they distributed to them freeholds, under the obligation of continuing the same service to their country. This appears by the name of knight’s service, a knight being no more than a soldier, and a knight’s fee no more than was sufficient to maintain one. ’Tis plain, that knighthood was always esteemed nobility; so that no man, of what quality soever, thought a knight inferior to him, and those of the highest birth could not act as noblemen till they were knighted. Among the Goths in Spain, the cutting off the hair (which being long was the mark of knighthood) was accounted [as] degrading, and looked upon to be so great a mark of infamy, that he who had suffer’d it, could never bear any honor or office in the commonwealth; and there was no dignity so high, but every knight was capable of it. There was no distinction of men above it, and even to this day baron, or varon, in their language, signifies no more than vir in Latin, which is not properly given to any man unless he be free. The like was in France, till the coming in of the third race of kings, in which time the 12 peers (of whom 6 only were laymen) were raised to a higher dignity, and the commands annexed made hereditary; but the honour of knighthood was thereby no way diminished. Tho there were dukes, earls, marquesses and barons in the time of Froissart, yet he usually calls them knights: And Philippe de Comines, speaking of the most eminent men of his time, calls them good, wise or valiant knights. Even to this day the name of gentleman comprehends all that is raised above the common people; Henry the fourth usually called himself the first gentleman in France; and ’tis an ordinary phrase among them, when they speak of a gentleman of good birth, to say, il est noble comme le roy; He is as noble as the king. In their general assembly of estates, the Chamber of the Noblesse, which is one of three, is composed of the deputies sent by the gentry of every province; and in the inquiry made about the year 1668 concerning nobility, no notice was taken of such as had assumed the titles of earl, marquess, viscount, or baron, but only of those who called themselves gentlemen; and if they could prove that name to belong to them, they were left to use the other titles as they pleased. When duels were in fashion (as all know they were lately) no man except the princes of the blood, and marshals of France, could with honour refuse a challenge from any gentleman: The first, because it was thought unfit, that he who might be king, should fight with a subject to the danger of the commonwealth, which might by that means be deprived of its head: The others being by their office commanders of the nobility, and judges of all the controversies relating to honour that happen amongst them, cannot reasonably be brought into private contests with any. In Denmark, nobleman and gentleman is the same thing; and till the year 1660, they had the principal part of the government in their hands. When Charles Gustavus, king of Sweden, invaded Poland in the year 1655, ’tis said, that there were above three hundred thousand gentlemen in arms to resist him. This is the nobility of that country, kings are chosen by them: Every one of them will say, as in France, He is noble as the king . The last king was a private man among them, not thought to have had more than four hundred pounds a year. 22 He who now reigns was not at all above him in birth or estate, till he had raised himself by great services done for his country in many wars; and there was not one gentleman in the nation who might not have been chosen as well as he, if it had pleased the assembly that did it.
This being the nobility of the Northern nations, and the true baronage of England, ’tis no wonder that they were called nobiles; the most eminent among them magnates, principes, proceres; and so numerous that they were esteemed to be multitudo infinita. One place was hardly able to contain them; and the inconveniences of calling them all together appeared to be so great, that they in time chose rather to meet by representatives, than every one in his own person. The power therefore remaining in them, it matters not what method they observed in the execution. They who had the substance in their hands, might give it what form they pleased. Our author sufficiently manifests his ignorance, in saying there could be no knights of the shires in the time of the Saxons, because there were no shires; 23 for the very word is Saxon, and we find the names of Berkshire, Wiltshire, Devonshire, Dorsetshire, and others most frequently in the writings of those times; and dukes, earls, thanes or aldermen, appointed to command the forces, and look to the distribution of justice in them. Selden cites Ingulph for saying, that Alfred was the first that changed the provinces, c. into counties: but refutes him, and proves that the distinction of the land into shires or counties (for shire signified no more than the share or part committed to the care of the earl or comes ) was far more ancient. 24 Whether the first divisions by the Saxons were greater or lesser than the shires or counties now are, is nothing to the question: they who made them to be as they were, could have made them greater or lesser as they pleased. And whether they did immediately, or some ages after that distinction, cease to come to their great assemblies, and rather chuse to send their deputies, or, whether such deputies were chosen by counties, cities and boroughs, as in our days, or in any other manner, can be of no advantage or prejudice to the cause that I maintain. If the power of the nation, when it was divided into seven kingdoms, or united under one, did reside in the micklegemotes or witenagemotes; if these consisted of the nobility and people, who were sometimes so numerous that no one place could well contain them; and if the preference given to the chief among them, was on account of the offices they executed, either in relation to war or justice, which no man can deny, I have as much as serves for my purpose. ’Tis indifferent to me, whether they were called earls, dukes, aldermen, herotoghs or thanes; for ’tis certain that the titular nobility now in mode amongst us has no resemblance to this ancient nobility of England. The novelty therefore is on the other side, and that of the worst sort; because by giving the name of noblemen (which anciently belonged to such as had the greatest interests in nations, and were the supporters of their liberty) to court-creatures, who often have none, and either acquire their honours by money, or are preferr’d for servile and sometimes impure services render’d to the person that reigns, or else for mischiefs done to their country, the constitution has been wholly inverted, and the trust reposed in the kings (who in some measure had the disposal of offices and honours) misemploy’d. This is farther aggravated by appropriating the name of noblemen solely to them; whereas the nation having been anciently divided only into freemen or noblemen (who were the same) and villains; the first were, as Tacitus says of their ancestors the Germans, exempted from burdens and contributions, and reserved like arms for the uses of war, 25 whilst the others were little better than slaves, appointed to cultivate the lands, or to other servile offices. And I leave any reasonable man to judge, whether the latter condition be that of those we now call commoners. Nevertheless, he that will believe the title of noblemen still to belong to those only who are so by patent, may guess how well our wars would be managed if they were left solely to such as are so by that title. If this be approved, his majesty may do well with his hundred and fifty noblemen, eminent in valour and military experience as they are known to be, to make such wars as may fall upon him, and leave the despised commons under the name of villains, to provide for themselves if the success do not answer his expectations. But if the commons are as free as the nobles, many of them in birth equal to the patentees, in estate superior to most of them; and that it is not only expected they should assist him in wars with their persons and purses, but acknowledged by all, that the strength and virtue of the nation is in them, it must be confess’d, that they are true noblemen of England, and that all the privileges anciently enjoy’d by such, must necessarily belong to them, since they perform the offices to which they were annexed. This shews how the nobility were justly said to be almost infinite in number, so that no one place was able to contain them. The Saxon armies that came over into this country to a wholesome and generative climate, might well increase in four or five ages to those vast numbers, as the Franks, Goths and others had done in Spain, France, Italy, and other parts: and when they were grown so numerous, they found themselves necessarily obliged to put the power into the hands of representatives chosen by themselves, which they had before exercised in their own persons. But these two ways differing rather in form than essentially, the one tending to democracy, the other to aristocracy, they are equally opposite to the absolute dominion of one man reigning for himself, and governing the nation as his patrimony; and equally assert the rights of the people to put the government into such a form as best pleases themselves. This was suitable to what they had practised in their own country; De minoribus consultant principes, de majoribus omnes. 26 Nay, even these smaller matters cannot be said properly to relate to the king; for he is but one, and the word principes is in the plural number, and can only signify such principal men, as the same author says were chosen by the general assemblies to do justice, c. and to each of them one hundred comites joined, not only to give advice, but authority to their actions.
The word omnes spoken by a Roman, must likewise be understood as it was used by them, and imports all the citizens, or such as made up the body of the commonwealth. If he had spoken of Rome or Athens whilst they remained free, he must have used the same word (because all those of whom the city consisted had votes) how great soever the number of slaves or strangers might have been. The Spartans are rightly said to have gained, lost and recovered the lordship or principality of Greece. They were all lords in relation to their helots, and so were the Dorians in relation to that sort of men, which under several names they kept, as the Saxons did their villains, for the performance of the offices which they thought too mean for those who were ennobled by liberty, and the use of arms, by which the commonwealth was defended and enlarged. Tho the Romans scorned to give the title of lord to those who had usurped a power over their lives and fortunes; yet every one of them was a lord in relation to his own servants, and altogether are often called lords of the world: 27 the like is seen almost everywhere. The government of Venice having continued for many ages in the same families, has ennobled them all. No phrase is more common in Switzerland, than the lords of Bern, or the lords of Zurich and other places, tho perhaps there is not a man amongst them who pretends to be a gentleman, according to the modern sense put upon that word. The states of the United Provinces are called high and mighty lords, and the same title is given to each of them in particular. Nay, the word Herr, which signifies lord both in high and low Dutch, is as common as monsieur in France, signor in Italy, or señor in Spain; and is given to everyone who is not of a sordid condition, but especially to soldiers: and tho a common soldier be now a much meaner thing than it was anciently, no man speaking to a company of soldiers in Italian, uses any other stile than signori soldati; and the like is done in other languages. ’Tis not therefore to be thought strange, if the Saxons, who in their own country had scorned any other employment than that of the sword, should think themselves farther ennobled, when by their arms they had acquired a great and rich country, and driven out or subdued the former inhabitants. They might well distinguish themselves from the villains they brought with them, or the Britains they had enslaved. They might well be called magnates, proceres regni, nobiles, Angliae nobilitas, barones; and the assemblies of them justly called concilium regni generale, universitas totius Angliae nobilium, universitas baronagii, 28 according to the variety of times and other occurrences. We have such footsteps remaining of the name of baron, as plainly shew the signification of it. The barons of London and the Cinque Ports are known to be only the freemen of those places. In the petty court-barons, every man who may be of a jury is a baron. These are noblemen; for there are noble nations as well as noble men in nations. The Mamelukes accounted themselves to be all noble, tho born slaves; and when they had ennobled themselves by the use of arms, they look’d upon the noblest of the Egyptians as their slaves. Tertullian writing, not to some eminent men, but to the whole people of Carthage, calls them antiquitate nobiles, nobilitate felices. 29 Such were the Saxons, ennobled by a perpetual application to those exercises that belong to noblemen, and an abhorrence to anything that is vile and sordid.
Lest this should seem far fetch’d, to those who please themselves with cavilling, they are to know, that the same general councils are expressed by other authors in other words. They are called the general council of the bishops, noblemen, counts, all the wise men, elders, and people of the whole kingdom, 30 in the time of Ine. In that of Edward the elder, the great council of the bishops, abbots, noblemen and people. 31 William of Malmesbury calls them, the general senate and assembly of the people. 32 Sometimes they are in short called clergy and people; but all express the same power, neither received from, nor limitable by kings, who are always said to be chosen or made, and sometimes deposed by them. William the Norman found, and left the nation in this condition: Henry the second, John and Henry third, who had nothing but what was conferred upon them by the same clergy and people, did so too. Magna Charta could give nothing to the people, who in themselves had all; and only reduced into a small volume the rights which the nation was resolved to maintain; brought the king to confess, they were perpetually inherent, and time out of mind enjoyed, and to swear that he would no way violate them; if he did, he was ipso facto excommunicated; and being thereby declared to be an execrable perjur’d person, they knew how to deal with him. This act has been confirmed by thirty parliaments; and the proceedings with kings, who have violated their oaths, as well before as after the time of Henry the third, which have been already mentioned, are sufficient to shew, that England has always been governed by itself, and never acknowledged any other lord than such as they thought fit to set up.
Those who without regard to truth, resolve to insist upon such points as they think may serve their designs, when they find it cannot be denied that the powers before mentioned have been exercised by the English and other nations, say, that they were the concessions of kings, who being masters of the soil, might bestow parcels upon some persons with such conditions as they pleased, retaining to themselves the supreme dominion of the whole: and having already, as they think, made them the fountains of honour, they proceed to make them also the fountains of property; and for proof of this allege, that all lands, tho held of mean lords, do by their tenures at last result upon the king, as the head from whom they are enjoyed. This might be of force if it were true: but matters of the highest importance requiring a most evident proof, we are to examine, first, if it be possible; and in the next place, if it be true.
1. For the first; No man can give what he has not. Whoever therefore will pretend that the king has bestowed this propriety, must prove that he had it in himself. I confess, that the kings of Spain and Portugal obtained from the pope grants of the territories they possessed in the West-Indies; and this might be of some strength, if the pope as vicar of Christ had an absolute dominion over the whole earth; but if that fail, the whole falls to the ground, and he is ridiculously liberal of that which no way belongs to him. My business is not to dispute that point; but before it can have any influence upon our affairs, our kings are to prove, that they are lords of England upon the same title, or some other equivalent to it. When that is done, we shall know upon whom they have a dependence, and may at leisure consider, whether we ought to acknowledge, and submit to such a power, or give reasons for our refusal. But there being no such thing in our present case, their property must be grounded upon something else, or we may justly conclude they have none.
In order to this ’tis hardly worth the pains to search into the obscure remains of the British histories: For when the Romans deserted our island, they did not confer the right they had (whether more or less) upon any man, but left the enjoyment of it to the poor remainders of the nation, and their own established colonies, who were grown to be one people with the natives. The Saxons came under the conduct of Hengist and Horsa, who seem to have been sturdy pirates; but did not (that I can learn) bear any characters in their persons of the so much admired sovereign majesty, that should give them an absolute dominion or propriety, either in their own country, or any other they should set their feet upon. They came with about a hundred men; and chusing rather to serve Vortigern, than to depend upon what they could get by rapine at sea, lived upon a small proportion of land by him allotted to them. 1 Tho this seems to be but a slender encouragement, yet it was enough to invite many others to follow their example and fortune; so that their number increasing, the county of Kent was given to them, under the obligation of serving the Britains in their wars. Not long after, lands in Northumberland were bestowed upon another company of them with the same condition. This was all the title they had to what they enjoyed, till they treacherously killed four hundred and sixty, 2 or, as William of Malmesbury says, three hundred principal men of the British nobility, 3 and made Vortigern prisoner, who had been so much their benefactor, that he seems never to have deserved well but from them, and to have incens’d the Britains by the favour he shew’d them, as much as by the worst of his vices. And certainly actions of this kind, composed of falsehood and cruelty, can never create a right, in the opinion of any better men than Filmer and his disciples, who think that the power only is to be regarded, and not the means by which it is obtained. But tho it should be granted that a right had been thus acquired, it must accrue to the nation, not to Hengist and Horsa. If such an acquisition be called a conquest, the benefit must belong to those that conquer’d. This was not the work of two men; and those who had been free at home, can never be thought to have left their own country, to fight as slaves for the glory and profit of two men in another. It cannot be said that their wants compelled them, for their leaders suffer’d the same, and could not be relieved but by their assistance; and whether their enterprize was good or bad, just or unjust, it was the same to all: No one man could have any right peculiar to himself, unless they who gained it, did confer it upon him: and ’tis no way probable, that they who in their own country had kept their princes within very narrow limits, as has been proved, should resign themselves, and all they had, as soon as they came hither. But we have already shewn, that they always continued most obstinate defenders of their liberty, and the government to which they had been accustomed; that they managed it by themselves, and acknowledged no other laws than their own. Nay, if they had made such a resignation of their right, as was necessary to create one in their leaders, it would be enough to overthrow the proposition; for ’tis not then the leader that gives to the people, but the people to the leader. If the people had not a right to give what they did give, none was conferred upon the receiver: if they had a right, he that should pretend to derive a benefit from thence, must prove the grant, that the nature and intention of it may appear.
2. To the second: If it be said that records testify all grants to have been originally from the king; I answer, that tho it were confessed (which I absolutely deny, and affirm that our rights and liberties are innate, inherent, and enjoy’d time out of mind before we had kings), it could be nothing to the question, which is concerning reason and justice; and if they are wanting, the defect can never be supplied by any matter of fact, tho never so clearly proved. Or if a right be pretended to be grounded upon a matter of fact, the thing to be proved is, that the people did really confer such a right upon the first, or some other kings: And if no such thing do appear, the proceedings of one or more kings as if they had it, can be of no value. But in the present case, no such grant is pretended to have been made, either to the first, or to any of the following kings; the right they had not their successors could not inherit, and consequently cannot have it, or at most no better title to it than that of usurpation.
But as they who enquire for truth ought not to deny or conceal anything, I may grant that manors, c. were enjoyed by tenure from kings; but that will no way prejudice the cause I defend, nor signify more, than that the countries which the Saxons had acquired, were to be divided among them; and to avoid the quarrels that might arise, if every man took upon him to seize what he could, a certain method of making the distribution was necessarily to be fixed; and it was fit, that every man should have something in his own hands to justify his title to what he possessed, according to which controversies should be determined. This must be testified by somebody, and no man could be so fit, or of so much credit as he who was chief among them; and this is no more than is usual in all the societies of the world. The mayor of every corporation, the speaker or clerk of the house of peers or house of commons, the first president of every parliament, or presidial in France; the consul, burgermaster, avoyer or bailiff in every free town of Holland, Germany or Switzerland, sign the publick acts that pass in those places. The dukes of Venice and Genoa do the like, tho they have no other power than what is conferred upon them, and of themselves can do little or nothing. The grants of our kings are of the same nature, tho the words mero motu nostro 4 seem to imply the contrary; for kings speak always in the plural number, to shew that they do not act for themselves, but for the societies over which they are placed; and all the veneration that is, or can be given to their acts, does not exalt them, but those from whom their authority is derived, and for whom they are to execute. The tyrants of the East and other barbarians whose power is most absolute, speak in the single number, as appears by the decrees of Nebuchadnezzar, Cyrus, Darius and Ahasuerus recited in Scripture, with others that we hear of daily from those parts: but wheresoever there is anything of civility or regularity in government, the prince uses the plural, to shew that he acts in a publick capacity. From hence, says Grotius, the rights of kings to send ambassadors, make leagues, c. do arise: the confederacies made by them do not terminate with their lives, because they are not for themselves; they speak not in their own persons, but as representing their people; and a king who is depriv’d of his kingdom loses the right of sending ambassadors, 5 because he can no longer speak for those, who by their own consent, or by a foreign force, are cut off from him. The question is not whether such a one be justly or unjustly deprived (for that concerns only those who do it or suffer it) but whether he can oblige the people; and ’tis ridiculous for any nation to treat with a man that cannot perform what shall be agreed, or for him to stipulate that which can oblige, and will be made good only by himself.
But tho much may be left to the discretion of kings in the distribution of lands and the like, yet it no way diminishes the right of the people, nor confers any upon them otherwise to dispose of what belongs to the publick, than may tend to the common good, and the accomplishment of those ends for which they are entrusted. Nay, if it were true, that a conquered country did belong to the crown, the king could not dispose of it, because ’tis annexed to the office, and not alienable by the person. This is not only found in regular mixed monarchies (as in Sweden, where the grants made by the last kings have been lately rescinded by the general assembly of estates, as contrary to law) but even in the most absolute, as in France, where the present king, who has stretched his power to the utmost, has lately acknowledged that he cannot do it; and according to the known maxim of the state, that the demesnes of the crown, which are designed for the defraying of publick charges, cannot be alienated, all the grants made within the last fifteen years have been annulled; even those who had bought lands of the crown have been called to account, and the sums given being compared with the profits received, and a moderate interest allowed to the purchasers, so much of the principal as remained due to them has been repay’d, and the lands resumed.
Having made it appear, as I suppose, that the ancient nobility of England was composed of such men as had been ennobled by bearing arms in the defence or enlargement of the commonwealth; that the dukes, earls, c. were those who commanded them; that they and their dependents received lands for such services, under an obligation of continuing to render the like, and according to their several degrees and proportions, to provide and maintain horses, arms and men for the same uses; it cannot be denied that they were such gentlemen and lords of manors, as we now call commoners, together with the freeholders, and such as in war were found most able to be their leaders. Of these the micklegemotes, witenagemotes, and other publick assemblies did consist; and nothing can be more absurd than to assign the names and rights of duke, earl and viscount, which were names of offices, to those who have not the offices, and are no way fit for them. If our author therefore had said, that such as these who had always composed the great councils of our nation, had in favour of Henry the First, bestowed the crown upon him, as they had done upon his father and brother, I should agree with him: but ’tis the utmost extravagance to say, that he who had neither title nor possession, should give the power to those who had always been in the possession of it, and exercised it in giving to him whatsoever he had. But I most wonder he should so far forget himself, to call this Henry a usurper, 1 and detract from the validity of his acts, because he had no title; whereas there neither is, was, or can be a usurper if there be any truth in his doctrine: for he plainly tells us, we are only to look to the power, and not at all to the means and ways by which it is obtained; 2 and making no difference between a king and a tyrant, enjoins an equal submission to the commands of both. If this were only a slip of his pen, and he did really take this Henry to be a usurper because he had not a good title, I should desire to know the marks by which a lawful king is distinguished from a usurper, and in what a just title does consist. If he place it in an hereditary succession, we ought to be informed, whether this right must be deduced from one universal lord of mankind, or from a particular lord of every people: If from the universal lord, the same descent that gives him a right to the dominion of any one country, enslaves the whole world to him: if from the particular lord of one place, proof must be given how he came to be so: for if there was a defect in the first, it can never be repaired, and the possession is no more than a continued usurpation. But having already proved the absurdity of any pretence to either, I shall forbear the repetition, and only say, that if the course of succession may never be justly interrupted, the family of Meroveus could not have had any right to the crown of France; Pepin was a usurper, if it must forever have continued in the descendants of Meroveus, and Hugh Capet could have no title, if the race of Pepin might not be dispossess’d. I leave our author to dispute this point with the king of France; and when he has so far convinced him that he is a usurper, as to persuade him to resign his crown to the house of Austria claiming from Pharamond, or to that of Lorraine as descended from Pepin, I can give him half a dozen more knots which will not be with less difficulty untied, and which instead of establishing the titles of such kings as are known to us, will overthrow them all, unless a right be given to usurpation, or the consent of a people do confer it.
But if there is such a thing as a usurper, and a rule by which men may judge of usurpation, ’tis not only lawful but necessary for us to examine the titles of such as go under the name of kings, that we may know whether they are truly so or not, lest through ignorance we chance to give the veneration and obedience that is due to a king, to one who is not a king, and deny it to him, who by an uninterruptible line of descent is our natural lord, and thereby prefer the worst of men and our most bitter enemy before the person we ought to look upon as our father: and if this prove dangerous to one or more kings, ’tis our author’s fault, not mine.
If there be no usurper, nor rule of distinguishing him from a lawful prince, Filmer is the worst of all triflers and impostors, who grounds his arguments in the most serious matters upon what he esteems to be false: but the truth is, he seems to have set himself against humanity and common sense, as much as against law and virtue; and if he who so frequently contradicts himself, can be said to mean anything, he would authorize rapine and murder, and persuade us to account those to be rightful kings, who by treachery and other unjust means overthrow the right of descent which he pretends to esteem sacred, as well as the liberties of nations, which by better judges are thought to be so, and gives the odious name of usurpation to the advancement of one who is made king by the consent of a willing people.
But if Henry the First were a usurper, I desire to know whether the same name belongs to all our kings, or which of them deserves a better, that we may understand whose acts ought to be reputed legal, and to whose descent we owe veneration, or whether we are wholly exempted from all: for I cannot see a possibility of fixing the guilt of usurpation upon Henry the First, without involving many, if not all our kings in the same.
If his title was not good because his brother Robert was still living, that of Rufus is by the same reason overthrown; and William their father being a bastard could have none. This fundamental defect could never be repair’d; for the successors could inherit no more than the right of the first, which was nothing. Stephen could deduce no title either from Norman or Saxon; whatsoever Henry the second pretended, must be from his mother Maud, and any other might have been preferred before her as well as he. If her title was from the Normans, it must be void, since they had none, and the story of Edgar Atheling is too impertinent to deserve mention. But however, it could be of no advantage to her; for David king of Scotland, brother to her mother from whom only her title could be derived, was then alive with his son Henry, who dying not long after, left three sons and three daughters, whose posterity being distributed into many families of Scotland, remains to this day; and if proximity of blood is to be consider’d, ought always to have been preferr’d before her and her descendants, unless there be a law that gives the preference to daughters before sons. What right soever Henry the second had, it must necessarily have perished with him, all his children having been begotten in manifest adultery on Eleanor of Gascony, during the life of Lewis king of France her first husband: and nothing could be alleged to colour the business, but a dispensation from the pope directly against the law of God, and the words of our Saviour, who says, That a wife cannot be put away unless for adultery, and he that marrieth her that is put away committeth adultery. 3 The pollution of this spring is not to be cured; but tho it should pass unregarded, no one part of the succession since that time has remained entire. John was preferred before Arthur his elder brother’s son: Edward the third was made king by the deposition of his father: Henry the fourth by that of Richard the 2d. If the house of Mortimer or York had the right, Henry the 4th, 5th, and 6th, were not kings, and all who claim under them have no title. However, Richard the third could have none; for the children of his elder brother the duke of Clarence were then living. The children of Edward the fourth may be suspected of bastardy; and tho it may have been otherwise, yet that matter is not so clear as things of such importance ought to be, and the consequence may reach very far. But tho that scruple were removed, ’tis certain that Henry the 7th was not king in the right of his wife Elizabeth, for he reigned before and after her; and for his other titles, we may believe Philippe de Comines, who says, He had neither cross nor pile. 4 If Henry the eighth had a right in himself, or from his mother, he should have reigned immediately after her death, which he never pretended, nor to succeed till his father was dead, thereby acknowledging he had no right but from him, unless the parliament and people can give it. The like may be said of his children. Mary could have no title if she was a bastard, begotten in incest; but if her mother’s marriage was good and she legitimate, Elizabeth could have none.
Yet all these were lawful kings and queens; their acts continue in force to this day to all intents and purposes: the parliament and people made them to be so, when they had no other title. The parliament and people therefore have the power of making kings: Those who are so made are not usurpers: We have had none but such for more than seven hundred years. They were therefore lawful kings, or this nation has had none in all that time; and if our author like this conclusion, the account from whence it is drawn may without difficulty be carried as high as our English histories do reach.
This being built upon the steady foundation of law, history and reason, is not to be removed by any man’s opinion; especially by one accompanied with such circumstances as Sir Walter Raleigh was in during the last years of his life: And there is something of baseness, as well as prevarication, in turning the words of an eminent person, reduced to great difficulties, to a sense no way agreeing with his former actions or writings, and no less tending to impair his reputation than to deceive others. Our author is highly guilty of both, in citing Sir Walter Raleigh to invalidate the Great Charter of our liberties, as begun by usurpation, and shewed to the world by rebellion; 5 whereas no such thing, nor anything like it in word or principle can be found in the works that deserve to go under his name. The dialogue in question, with some other small pieces published after his death, deserve to be esteemed spurious: Or if, from a desire of life, when he knew his head lay under the ax, he was brought to say things no way agreeing with what he had formerly profess’d, they ought rather to be buried in oblivion, than produced to blemish his memory. But that the publick cause may not suffer by his fault, ’tis convenient the world should be informed, that tho he was a well qualified gentleman, yet his morals were no way exact, as appears by his dealings with the brave Earl of Essex. And he was so well assisted in his History of the World, that an ordinary man with the same helps might have perform’d the same things. Neither ought it to be accounted strange, if that which he writ by himself had the tincture of another spirit, when he was deprived of that assistance, tho his life had not depended upon the will of the prince, and he had never said, that the bonds of subjects to their kings should always be wrought out of iron, and those of kings to their subjects out of cobwebs. . 6
A perverted judgment always leads men into a wrong way, and persuades them to believe that those things favour their cause, that utterly overthrow it. For a proof of this, I desire our author’s words may be consider’d. In the former parliaments, says he, instituted and continued since Henry the first his time, is not to be found the usage of any natural liberty of the people: For all those liberties that are claimed in parliament, are liberties of grace from the king, and not the liberties of nature to the people: For if the liberty were natural, it would give power unto the multitude to assemble themselves, when and where they pleased, to bestow the sovereignty, and by pactions to limit and direct the exercise of it. 1 And I say that nations being naturally free may meet, when and where they please; may dispose of the sovereignty, and may direct or limit the exercise of it, unless by their own act they have deprived themselves of that right: and there could never have been a lawful assembly of any people in the world, if they had not had that power in themselves. It was proved in the preceding section, that all our kings having no title, were no more than what the nobility and people made them to be; that they could have no power but what was given to them, and could confer none except what they had received. If they can therefore call parliaments, the power of calling them must have been given to them, and could not be given by any who had it not in themselves. The Israelites met together, and chose Ehud, Gideon, Samson, Jephthah, and others, to be their leaders, whom they judged fit to deliver them from their enemies. By the same right they assembled at Mizpah to make war against the tribe of Benjamin, when justice was denied to be done against those who had villainously abused the Levite’s concubine. 2 In the like manner they would have made Gideon king, but he refused. In the same place they met, and chose Saul to be their king. He being dead, the men of Judah assembled themselves, and anointed David: Not long after, all the tribes met at Hebron, made a contract with him, and received him as their king. In the same manner, tho by worse counsel, they made Absalom king. And the like was attempted in favour of Sheba the son of Bichri, tho they then had a king chosen by themselves. When they found themselves oppressed by the tributes that had been laid upon them by Solomon, they met at Shechem; and being displeased with Rehoboam’s answer to their complaints, ten of the tribes made Jeroboam king. Jehu, and all the other kings of Israel, whether good or bad, had no other title than was conferred upon them by the prevailing part of the people; which could not have given them any, unless they had met together; nor meet together without the consent, and against the will of those that reigned, unless the power had been in themselves.
Where governments are more exactly regulated, the power of judging when ’tis fit to call the senate or people together, is referr’d to one or more magistrates; as in Rome to the consuls or tribunes, in Athens to the archons, and in Thebes to the beotarchs: but none of them could have these powers, unless they had been given by those who advanced them to the magistracies to which they were annexed; nor could they have been so annexed, if those who created them had not had the right in themselves. If these officers neglected their duty of calling such assemblies when the publick affairs required, the people met by their own authority, and punished the person, or abrogated the magistracy, as appears in the case of the decemviri, and many others that might be alleged, if the thing were not so plain as to need no further proof. The reason of this is, that they who institute a magistracy, best know whether the end of the institution be rightly pursued or not: And all just magistracies being the same in essence, tho differing in form, the same right must perpetually belong to those who put the sovereign power into the hands of one, a few, or many men, which is what our author calls the disposal of the sovereignty. Thus the Romans did when they created kings, consuls, military tribunes, dictators, or decemviri: and it had been most ridiculous to say, that those officers gave authority to the people to meet and chuse them; for they who are chosen are the creatures of those who chuse, and are nothing more than others till they are chosen. The last king of Sweden, Charles Gustavus, told a gentleman who was ambassador there, that the Swedes having made him king, when he was poor and had nothing in the world, he had but one work to do, which was so to reign, that they might never repent the good opinion they had conceived of him. They might therefore meet, and did meet to confer the sovereignty upon him, or he could never have had it: For tho the kingdom be hereditary to males or females, and his mother was sister to the great Gustavus; yet having married a stranger without the consent of the estates, she performed not the condition upon which women are admitted to the succession; and thereby falling from her right, he pretended not to any. The act of his election declares he had none, and gives the crown to him and the heirs of his body, with this farther declaration, that the benefit of his election should no way extend to his brother Prince Adolphus; and ’tis confessed by all the Swedish nation, that if the king now reigning should die without children, the estates would proceed to a new election.
’Tis rightly observ’d by our author, that if the people might meet and give the sovereign power, they might also direct and limit it; for they did meet in this and other countries, they did confer the sovereign power, they did limit and direct the exercise; and the laws of each people shew in what manner and measure it is everywhere done. This is as certain in relation to kings, as any other magistrates. The commission of the Roman dictators was, to take care that the commonwealth might receive no detriment. 3 The same was sometimes given to the consuls: King Offa’s confession, that he was made king to preserve the publick liberty, 4 expresses the same thing: And Charles Gustavus, who said he had no other work, than to govern in such a manner, that they who had made him king might not repent, shew’d there was a rule which he stood obliged to follow, and an end which he was to procure, that he might merit and preserve their good opinion. This power of conferring the sovereignty was exercised in France by those who made Meroveus king, in the prejudice of the two grandchildren of Pharamond sons to Clodion; by those who excluded his race, and gave the crown to Pepin; by those who deposed Lewis le Debonair, and Charles le Gros; by those who brought in five kings, that were either bastards or strangers, between him and Charles le Simple; by those who rejected his race, and advanced Hugh Capet; by those who made Henry the first king, to the prejudice of Robert his elder brother, and continued the crown in the race of Henry for ten generations, whilst the descendants of Robert were only dukes of Burgundy. The like was done in Castile and Aragon, by frequently preferring the younger before the elder brother; the descendants of females before those of the male-line in the same degree; the more remote in blood before the nearest; and sometimes bastards before the legitimate issue. The same was done in England in relation to every king, since the coming in of the Normans, as I shewed in the last section, and other places of his work.
That they who gave the sovereignty, might also circumscribe and direct it, is manifest by the several ways of providing for the succession instituted by several nations. Some are merely elective, as the empire of Germany and the kingdom of Poland to this day; the kingdom of Denmark till the year 1660; that of Sweden till the time of Gustavus Ericson, who delivered that nation from the oppression of Christian the second the cruel king of the Danes. In others the election was confined to one or more families, as the kingdom of the Goths in Spain to the Balthi and Amalthi. In some, the eldest man of the reigning family was preferr’d before the nearest, as in Scotland before the time of Kenneth. In other places the nearest in blood is preferr’d before the elder if more remote. In some, no regard is had to females, or their descendants, as in France and Turkey. In others, they or their descendants are admitted, either simply as well as males; or under a condition of marrying in the country, or with the consent of the estates, as in Sweden. And no other reason can be given for this almost infinite variety of constitutions, than that they who made them would have it so; which could not be, if God and nature had appointed one general rule for all nations. For in that case, the kingdom of France must be elective, as well as that of Poland and the Empire; or the empire and Poland hereditary, as that of France: Daughters must succeed in France, as well as in England, or be excluded in England as in France; and he that would establish one as the ordinance of God and nature, must necessarily overthrow all the rest.
A farther exercise of the natural liberty of nations is discovered in the several limitations put upon the sovereign power. Some kings, says Grotius, have the summum imperium summo modo; others, modo non summo: 5 and amongst those that are under limitations, the degrees, as to more or less, are almost infinite, as I have proved already by the example of Aragon, ancient Germany, the Saxon kings, the Normans, the kings of Castile, the present empire, with divers others. And I may safely say, that the ancient government of France was much of the same nature to the time of Charles the 7th, and Lewis the 11th; but the work of emancipating themselves, as they call it, begun by them, is now brought to perfection in a boundless elevation of the king’s greatness and riches, to the unspeakable misery of the people.
’Twere a folly to think this variety proceeds from the concessions of kings, who naturally delight in power, and hate that which crosses their will. It might with more reason be imagined, that the Roman consuls, who were brought up in liberty, who had contracted a love to their country, and were contented to live upon an equal foot with their fellow citizens, should confine the power of their magistracy to a year; or that the dukes of Venice should be graciously pleased to give power to the Council of Ten to punish them capitally if they transgressed the laws, than that kings should put such fetters upon their power, which they so much abhor; or that they would suffer them, if they could be easily broken. If any one of them should prove so moderate, like Trajan, to command the prefect of the praetorian guard to use the sword for him if he governed well, and against him if he did not, it would soon be rescinded by his successor; the law which has no other strength than the act of one man, may be annulled by another. So that nothing does more certainly prove, that the laws made in several countries to restrain the power of kings, and variously to dispose of the succession, are not from them, than the frequent examples of their fury, who have exposed themselves to the greatest dangers, and brought infinite miseries upon the people, through the desire of breaking them. It must therefore be concluded, that nations have power of meeting together, and of conferring, limiting, and directing the sovereignty; or all must be grounded upon most manifest injustice and usurpation.
No man can have a power over a nation otherwise than de jure, or de facto. He who pretends to have a power de jure, must prove that it is originally inherent in him or his predecessor from whom he inherits; or that it was justly acquired by him. The vanity of any pretence to an original right appears sufficiently, I hope, from the proofs already given, that the first fathers of mankind had it not; or if they had, no man could now inherit the same, there being no man able to make good the genealogy that should give him a right to the succession. Besides, the facility we have of proving the beginnings of all the families that reign among us, makes it as absurd for any of them to pretend a perpetual right to dominion, as for any citizen of London, whose parents and birth we know, to say he is the very man Noah who lived in the time of the flood, and is now four or five thousand years old.
If the power were conferred on him or his predecessors, ’tis what we ask; for the collation can be of no value, unless it be made by those who had a right to do it; and the original right by descent failing, no one can have any over a free people but themselves, or those to whom they have given it.
If acquisition be pretended, ’tis the same thing; for there can be no right to that which is acquired, unless the right of invading be proved; and that being done, nothing can be acquired except what belonged to the person that was invaded, and that only by him who had the right of invading. No man ever did or could conquer a nation by his own strength; no man therefore could ever acquire a personal right over any; and if it was conferr’d upon him by those who made the conquest with him, they were the people that did it. He can no more be said to have the right originally in and from himself, than a magistrate of Rome or Athens immediately after his creation; and having no other at the beginning, he can have none to eternity; for the nature of it must refer to the original, and cannot be changed by time.
Whatsoever therefore proceeds not from the consent of the people, must be de facto only, that is, void of all right; and ’tis impossible there should not be a right of destroying that which is grounded upon none; and by the same rule that one man enjoys what he gained by violence, another may take it from him. Cyrus overthrew the Assyrians and Babylonians, Alexander the Medes and Persians; and if they had no right of making war upon those nations, the nations could not but have a right of recovering all that had been unjustly taken from them, and avenging the evils they had suffered. If the cause of the war was originally just, and not corrupted by an intemperate use of the victory, the conquer’d people was perhaps obliged to be quiet; but the conquering armies that had conferred upon their generals what they had taken from their enemies, might as justly expect an account of what they had given, and that it should be employ’d according to the intention of the givers, as the people of any city might do from their regularly created magistrates; because it was as impossible for Cyrus, Alexander or Caesar, to gain a power over the armies they led, without their consent, as for Pericles, Valerius, or any other disarmed citizen to gain more power in their respective cities than was voluntarily conferr’d upon them. And I know no other difference between kingdoms so constituted by conquering armies, and such as are established in the most orderly manner, than that the first usually incline more to war and violence, the latter to justice and peace. But there have not been wanting many of the first sort (especially the nations coming from the north) who were no less exact in ordaining that which tended to the preservation of liberty, nor less severe in seeing it punctually performed, than the most regular commonwealths that ever were in the world. And it can with no more reason be pretended, that the Goths received their privileges from Alan or Theodoric, the Franks from Pharamond or Meroveus, and the English from Ine or Ethelred, than that the liberty of Athens was the gift of Themistocles or Pericles, that the empire of Rome proceeded from the liberality of Brutus or Valerius, and that the commonwealth of Venice at this day subsists by the favour of the Contarini or Moresini: which must reduce us to matter of right, since that of fact void of right can signify nothing.
In opposition to what is above said, some allege the name of king, as if there were a charm in the word; and our author seems to put more weight upon it, than in the reasons he brings to support his cause. But that we may see there is no efficacy in it, and that it conveys no other right than what particular nations may annex to it, we are to consider,
1. That the most absolute princes that are or have been in the world, never had the name of king; whereas it has been frequently given to those whose powers have been very much restrained. The Caesars were never called kings, till the sixth age of Christianity: the caliphs and sultan of Egypt and Babylon, the Great Turk, the khan of Tartary, or the Great Mogul never took that name, or any other of the same signification. The czar of Muscovy has it not, tho he is as absolute a monarch, and his people as miserable slaves as any in the world. On the other side, the chief magistrates of Rome and Athens for some time, those of Sparta, Aragon, Sweden, Denmark and England, who could do nothing but by law, have been called kings. This may be enough to shew, that a name being no way essential, what title soever is given to the chief magistrate, he can have no other power than the laws and customs of his country do give, or the people confer upon him.
2. The names of magistrates are often changed, tho the power continue to be the same; and the powers are sometimes alter’d tho the name remain. When Octavius Caesar by the force of a mad corrupted soldiery had overthrown all law and right, he took no other title in relation to military affairs than that of imperator, which in the time of liberty was by the armies often given to praetors and consuls: In civil matters he was, as he pretended, content with the power of tribune; 1 and the like was observed in his successor, who to new invented usurpations gave old and approved names. 2 On the other side, those titles which have been render’d odious and execrable by the violent exercise of an absolute power, are sometimes made popular by moderate limitations; as in Germany, where, tho the monarchy seem to be as well temper’d as any, the princes retain the same names of imperator, Caesar and Augustus, as those had done, who by the excess of their rage and fury had desolated and corrupted the best part of [the] world.
Sometimes the name is changed, tho the power in all respects continue to be the same. The lords of Castile had for many ages no other title than that of count; and when the nobility and people thought good, they changed it to that of king, without any addition to the power. 3
The sovereign magistrate in Poland was called duke till within the last two hundred years, when they gave the title of king to one of the Jagellan family; which title has continued to this day, tho without any change in the nature of the magistracy. And I presume, no wise man will think, that if the Venetians should give the name of king to their duke, it could confer any other power upon him than he has already, unless more should be conferr’d by the authority of the Great Council.
3. The same names which in some places denote the supreme magistracy, in others are subordinate or merely titular. In England, France and Spain, dukes and earls are subjects: in Germany the electors and princes who are called by those names are little less than sovereigns; and the dukes of Savoy, Tuscany, Muscovy and others, acknowledge no superior, as well as those of Poland and Castile had none, when they went under those titles. The same may be said of kings. Some are subject to a foreign power, as divers of them were subject to the Persian and Babylonian monarchs, who for that reason were called the kings of kings. Some also are tributaries; and when the Spaniards first landed in America, the great kings of Mexico and Peru had many others under them. Threescore and ten kings gathered up meat under the table of Adonibezek. 4 The Romans had many kings depending upon them. Herod and those of his race were of this number; and the dispute between him and his sons Aristobulus and Alexander was to be determined by them, neither durst he decide the matter till it was referred to him. But a right of appeal did still remain, as appears by the case of St. Paul when Agrippa was king. The kings of Mauritania from the time of Masinissa, were under the like dependence: Jugurtha went to Rome to justify himself for the death of Micipsa: Juba was commanded by the Roman magistrates Scipio, Petreius and Afranius: another Juba was made king of the same country by Augustus, and Tiridates of Armenia by Nero; and infinite examples of this nature may be alleged. Moreover, their powers are variously regulated, according to the variety of tempers in nations and ages. Some have restrained the powers that by experience were found to be exorbitant; others have dissolved the bonds that were laid upon them: and laws relating to the institution, abrogation, enlargement or restriction of the regal power, would be utterly insignificant if this could not be done. But such laws are of no effect in any other country than where they are made. The lives of the Spartans did not depend upon the will of Agesilaus or Leonidas, because Nebuchadnezzar could kill or save whom he pleased: and tho the king of Morocco may stab his subjects, throw them to the lions, or hang them upon tenterhooks; yet a king of Poland would probably be called to a severe account, if he should unjustly kill a single man.
If any man ask how nations come to have the power of doing these things, I answer, that liberty being only an exemption from the dominion of another, the question ought not to be, how a nation can come to be free, but how a man comes to have a dominion over it; for till the right of dominion be proved and justified, liberty subsists as arising from the nature and being of a man. Tertullian speaking of the emperors says, ab eo imperium a quo spiritus; 1 and we taking man in his first condition may justly say, ab eo libertas a quo spiritus; for no man can owe more than he has received. The creature having nothing, and being nothing but what the creator makes him, must owe all to him, and nothing to anyone from whom he has received nothing. Man therefore must be naturally free, unless he be created by another power than we have yet heard of. The obedience due to parents arises from hence, in that they are the instruments of our generation; and we are instructed by the light of reason, that we ought to make great returns to those from whom under God we have received all. When they die we are their heirs, we enjoy the same rights, and devolve the same to our posterity. God only who confers this right upon us, can deprive us of it: and we can no way understand that he does so, unless he had so declared by express revelation, or had set some distinguishing marks of dominion and subjection upon men; and, as an ingenious person not long since said, caused some to be born with crowns upon their heads, and all others with saddles upon their backs. 2 This liberty therefore must continue, till it be either forfeited or willingly resigned. The forfeiture is hardly comprehensible in a multitude that is not entered into any society; for as they are all equal, and equals can have no right over each other, 3 no man can forfeit anything to one who can justly demand nothing, unless it may be by a personal injury, which is nothing to this case; because where there is no society, one man is not bound by the actions of another. All cannot join in the same act, because they are joined in none; or if they should, no man could recover, much less transmit the forfeiture; and not being transmitted, it perishes as if it had never been, and no man can claim anything from it.
’Twill be no less difficult to bring resignation to be subservient to our author’s purpose; for men could not resign their liberty, unless they naturally had it in themselves. Resignation is a publick declaration of their assent to be governed by the person to whom they resign; that is, they do by that act constitute him to be their governor. This necessarily puts us upon the inquiry, why they do resign, how they will be governed, and proves the governor to be their creature; and the right of disposing the government must be in them, or they who receive it can have none. This is so evident to common sense, that it were impertinent to ask who made Carthage, Athens, Rome or Venice to be free cities. Their charters were not from men, but from God and nature. When a number of Phoenicians had found a port on the coast of Africa, they might perhaps agree with the inhabitants for a parcel of ground, but they brought their liberty with them. When a company of Latins, Sabines and Tuscans met together upon the banks of the Tiber, and chose rather to build a city for themselves, than to live in such as were adjacent, they carried their liberty in their own breasts, and had hands and swords to defend it. This was their charter; and Romulus could confer no more upon them, than Dido upon the Carthaginians. When a multitude of barbarous nations infested Italy, and no protection could be expected from the corrupted and perishing empire, such as agreed to seek a place of refuge in the scatter’d islands of the Adriatick gulf, had no need of any man’s authority to ratify the institution of their government. They who were the formal part of the city, and had built the material, could not but have a right of governing it as they pleased, since if they did amiss, the hurt was only to themselves. ’Tis probable enough that some of the Roman emperors, as lords of the soil, might have pretended to a dominion over them, if there had been any colour for it: but nothing of that kind appearing in thirteen hundred years, we are not like to hear of any such cavils. ’Tis agreed by mankind, that subjection and protection are relative; and that he who cannot protect those that are under him, in vain pretends to a dominion over them. The only ends for which governments are constituted, and obedience render’d to them, are the obtaining of justice and protection; and they who cannot provide for both, give the people a right of taking such ways as best please themselves, in order to their own safety.
The matter is yet more clear in relation to those who never were in any society, as at the beginning, or renovation of the world after the Flood; or who upon the dissolution of the societies to which they did once belong, or by some other accident have been obliged to seek new habitations. Such were those who went from Babylon upon the confusion of tongues, those who escaped from Troy when it was burnt by the Grecians; almost all the nations of Europe, with many of Asia and Africa upon the dissolution of the Roman empire. To which may be added a multitude of Northern nations, who, when they had increased to such numbers that their countries could no longer nourish them, or because they wanted skill to improve their lands, were sent out to provide for themselves; and having done so, did erect many kingdoms and states, either by themselves, or in union and coalition with the ancient inhabitants.
’Tis in vain to say, that wheresoever they came, the land did belong to somebody, and that they who came to dwell there must be subject to the laws of those who were lords of the soil, for that is not always true in fact. Some come into desert countries that have no lord, others into such as are thinly peopled, by men who knowing not how to improve their land, do either grant part of it upon easy terms to the new comers, or grow into a union with them in the enjoyment of the whole; and histories furnish us with infinite examples of this nature.
If we will look into our own original, without troubling ourselves with the senseless stories of Samothes the son of Japheth and his magicians, or the giants begotten by spirits upon the thirty daughters of Danaus sent from Phoenicia in a boat without sail, oars or rudder, we shall find that when the Romans abandoned this island, the inhabitants were left to a full liberty of providing for themselves: and whether we deduce our original from them or the Saxons, or from both, our ancestors were perfectly free; and the Normans having inherited the same right when they came to be one nation with the former, we cannot but continue so still unless we have enslaved ourselves.
Nothing is more contrary to reason than to imagine this. When the fierce barbarity of the Saxons came to be softened by a more gentle climate, the arts and religion they learnt, taught them to reform their manners, and better enabled them to frame laws for the preservation of their liberty, but no way diminished their love to it: and tho the Normans might desire to get the lands of those who had joined with Harold, and of others into their hands; yet when they were settled in the country, and by marriages united to the ancient inhabitants, they became true Englishmen, and no less lovers of liberty and resolute defenders of it than the Saxons had been. There was then neither conquering Norman nor conquered Saxon, but a great and brave people composed of both, united in blood and interest in the defence of their common rights, which they so well maintained, that no prince since that time has too violently encroached upon them, who, as the reward of his folly, has not lived miserably and died shamefully.
Such actions of our ancestors do not, as I suppose, savour much of the submission which patrimonial slaves do usually render to the will of their lord. On the contrary, whatsoever they did was by a power inherent in themselves to defend that liberty in which they were born. All their kings were created upon the same condition, and for the same ends. Alfred acknowledged he found and left them perfectly free; and the confession of Offa, that they had not made him king for his own merits, but for the defence of their liberty, comprehends all that were before and after him. They well knew how great the honour was, to be made head of a great people, and rigorously exacted the performance of the ends for which such a one was elevated, severely punishing those who basely and wickedly betray’d the trust reposed in them, and violated all that is most sacred among men; which could not have been unless they were naturally free, for the liberty that has no being cannot be defended.
Some have supposed, that tho the people be naturally free, and magistrates created by them, they do by such creations deprive themselves of that natural liberty; and that the names of king, sovereign lord, and dread sovereign, being no way consistent with liberty, they who give such titles do renounce it. Our author carries this very far, and lays great weight upon the submissive language used by the people, when they humbly crave that his majesty would be pleased to grant their accustomed freedom of speech, and access to his person; and give the name of supplications and petitions to the addresses made to him: 1 Whereas he answers in the haughty language of le roy le veut, le roy s’avisera, 2 and the like. But they who talk at this rate, shew, that they neither understand the nature of magistracy, nor the practice of nations. Those who have lived in the highest exercise of their liberty, and have been most tenacious of it, have thought no honor too great for such magistrates as were eminent in the defence of their rights, and were set up for that end. The name of dread sovereign might justly have been given to a Roman dictator, or consul, for they had the sovereign authority in their hands, and power sufficient for its execution. Whilst their magistracy continued, they were a terror to the same men, whose axes and rods had been a terror to them the year or month before, and might be so again the next. The Romans thought they could not be guilty of excess in carrying the power and veneration due to their dictator to the highest: And Livy tells us, that his edicts were esteemed sacred. 3 I have already shewn, that this haughty people, who might have commanded, condescended to join with their tribunes in a petition to the dictator Papirius, for the life of Quintus Fabius, who had fought a battle in his absence, and without his order, tho he had gained a great and memorable victory. The same Fabius, when consul, was commended by his father Q. Fabius Maximus, for obliging him by his lictors to dismount from his horse, and to pay him the same respect that was due from others. The tribunes of the people, who were instituted for the preservation of liberty, were also esteemed sacred and inviolable, as appears by that phrase, sacrosancta tribunorum potestas, 4 so common in their ancient writers. No man, I presume, thinks any monarchy more limited, or more clearly derived from a delegated power, than that of the German emperors; and yet sacra caesarea majestas 5 is the publick style. Nay, the Hollanders at this day call their burgermasters, tho they see them selling herring or tar, high and mighty lords, as soon as they are advanced to be of the 36, 42 or 48 magistrates of a small town. ’Tis no wonder therefore, if a great nation should think it conducing to their own glory, to give magnificent titles, and use submissive language to that one man, whom they set up to be their head; most especially, if we consider that they came from a country where such titles and language were principally invented.
Among the Romans and Grecians we hear nothing of majesty, highness, serenity and excellence appropriated to a single person, but receive them from Germany and other Northern countries. We find majestas populi Romani, and majestas imperii, 6 in their best authors; but no man speaking to Julius or Augustus, or even to the vainest of their successors, ever used those empty titles, nor took upon themselves the name of servants, as we do to every fellow we meet in the streets. When such ways of speaking are once introduced, they must needs swell to a more than ordinary height in all transactions with princes. Most of them naturally delight in vanity, and courtiers never speak more truth, than when they most extol their masters, and assume to themselves the names that best express the most abject slavery. These being brought into mode, like all ill customs, increase by use; and then no man can omit them without bringing that hatred and danger upon himself, which few will undergo, except for something that is evidently of great importance. Matters of ceremony and title at the first seem not to be so; and being for some time neglected, they acquire such strength as not to be easily removed. From private usage they pass into publick acts; and those flatterers who gave a beginning to them, proposing them in publick councils, where too many of that sort have always insinuated themselves, gain credit enough to make them pass. This work was farther advanced by the church of Rome, according to their custom of favouring that most, which is most vain and corrupt; and it has been usual with the popes and their adherents, liberally to gratify princes for services render’d to the church, with titles that tended only to the prejudice of the people. These poisonous plants having taken root, grew up so fast, that the titles which, within the space of a hundred years, were thought sufficient for the kings and queens of England, have of late been given to Monk and his honourable duchess. New phrases have been invented to please princes, or the sense of the old perverted, as has happen’d to that of le roy s’avisera: And that which was no more than a liberty to consult with the lords upon a bill presented by the commons, is by some men now taken for a right inherent in the king of denying such bills as may be offer’d to him by the lords and commons; tho the coronation oath oblige him to hold, keep and defend the just laws and customs, quas vulgus elegerit. 7 And if a stop be not put to this exorbitant abuse, the words still remaining in acts of parliament, which shew that their acts are our laws, may perhaps be also abolished.
But tho this should come to pass, by the slackness of the lords and commons, it could neither create a new right in the king, nor diminish that of the people: But it might give a better colour to those who are enemies to their country, to render the power of the crown arbitrary, than anything that is yet among us.
They who have more regard to the prevailing power than to right, and lay great weight upon the statute of Henry the seventh, which authorizes the acts of a king de facto, 1 seem not to consider, that thereby they destroy all right of inheritance; that he only is king de facto , who is received by the people; and that this reception could neither be of any value in itself, nor be made valid by a statute, unless the people, and their representatives who make the statute, had in themselves the power of receiving, authorizing and creating whom they please. For he is not king de facto who calls himself so, as Perkin or Simnel, but he who by the consent of the nation is possess’d of the regal power. If there were such a thing in nature, as a natural lord over every country, and that the right must go by descent, it would be impossible for any other man to acquire it, or for the people to confer it upon him, and to give the authority to the acts of one, who neither is nor can be a king, which belongs only to him who has the right inherent in himself, and inseparable from him. Neither can it be denied, that the same power which gives the validity to such acts as are performed by one who is not a king, that belongs to those of a true king, may also make him king; for the essence of a king consists in the validity of his acts. And ’tis equally absurd for one to pretend to be a king, whose acts as king are not valid, as that his own can be valid if those of another are; for then the same indivisible right which our author, and those of his principles assert to be inseparable from the person, would be at the same time exercised and enjoyed by two distinct and contrary powers.
Moreover, it may be observed, that this statute was made after frequent and bloody wars concerning titles to the crown; and whether the cause were good or bad, those who were overcome, were not only subject to be killed in the field, but afterwards to be prosecuted as traitors under the colour of law. He who gained the victory, was always set up to be king by those of his party; and he never failed to proceed against his enemies as rebels. This introduced a horrid series of the most destructive mischiefs. The fortune of war varied often; and I think it may be said, that there were few, if any, great families in England, that were not either destroy’d, or at least so far shaken, as to lose their chiefs, and many considerable branches of them: And experience taught, that instead of gaining any advantage to the publick in point of government, he for whom they fought, seldom proved better than his enemy. They saw that the like might again happen, tho the title of the reigning king should be as clear as descent of blood could make it. This brought things into an uneasy posture; and ’tis not strange, that both the nobility and commonalty should be weary of it. No law could prevent the dangers of battle; for he that had followers, and would venture himself, might bring them to such a decision, as was only in the hand of God. But thinking no more could justly be required to the full performance of their duty to the king, than to expose themselves to the hazard of battle for him; and not being answerable for the success, they would not have that law which they endeavour’d to support, turned to their destruction by their enemies, who might come to be the interpreters of it. But as they could be exempted from this danger only by their own laws, which could authorize the acts of a king without a title, and justify them for acting under him, ’tis evident that the power of the law was in their hands, and that the acts of the person who enjoyed the crown, were of no value in themselves. The law had been impertinent, if it could have been done without law; and the intervention of the parliament useless, if the kings de facto could have given authority to their own acts. But if the parliament could make that to have the effect of law, which was not law, and exempt those that acted according to it from the penalties of the law, and give the same force to the acts of one who is not king as of one who is, they cannot but have a power of making him to be king, who is not so; that is to say, all depends entirely upon their authority.
Besides, he is not king who assumes the title to himself, or is set up by a corrupt party; but he who according to the usages required in the case is made king. If these are wanting, he is neither de facto nor de jure, but tyrannus sine titulo. Nevertheless, this very man, if he comes to be received by the people, and placed in the throne, he is thereby made king de facto. His acts are valid in law; the same service is due to him as to any other: they who render it are in the same manner protected by the law; that is to say, he is truly king. If our author therefore do allow such to be kings, he must confess that power to be good which makes them so, when they have no right in themselves. If he deny it, he must not only deny that there is any such thing as a king de facto, which the statute acknowledges, but that we ever had any king in England; for we never had any other than such, as I have proved before.
By the same means he will so unravel all the law, that no man shall know what he has, or what he ought to do or avoid; and will find no remedy for this, unless he allow, that laws made without kings are as good as those made with them, which returns to my purpose: for they who have the power of making laws, may by law make a king as well as any other magistrate. And indeed the intention of this statute could be no other than to secure men’s persons and possessions, and so far to declare the power of giving and taking away the crown to be in the parliament, as to remove all disputes concerning titles, and to make him to be a legal king, whom they acknowledge to be king.
As impostors seldom make lies to pass in the world, without putting false names upon things, such as our author endeavour to persuade the people they ought not to defend their liberties, by giving the name of rebellion to the most just and honourable actions that have been performed for the preservation of them; and to aggravate the matter, fear not to tell us that rebellion is like the sin of witchcraft. But those who seek after truth, will easily find, that there can be no such thing in the world as the rebellion of a nation against its own magistrates, and that rebellion is not always evil. That this may appear, it will not be amiss to consider the word, as well as the thing understood by it as it is used in an evil sense.
The word is taken from the Latin rebellare, which signifies no more than to renew a war. When a town or province had been subdued by the Romans, and brought under their dominion, if they violated their faith after the settlement of peace, and invaded their masters who had spared them, they were said to rebel. But it had been more absurd to apply that word to the people that rose against the decemviri, kings or other magistrates, than to the Parthians or any of those nations who had no dependence upon them; for all the circumstances that should make a rebellion were wanting, the word implying a superiority in them against whom it is, as well as the breach of an establish’d peace. But tho every private man singly taken be subject to the commands of the magistrate, the whole body of the people is not so; for he is by and for the people, and the people is neither by nor for him. The obedience due to him from private men is grounded upon, and measured by the general law; and that law regarding the welfare of the people, cannot set up the interest of one or a few men against the publick. The whole body therefore of a nation cannot be tied to any other obedience than is consistent with the common good, according to their own judgment: and having never been subdued or brought to terms of peace with their magistrates, they cannot be said to revolt or rebel against them to whom they owe no more than seems good to themselves, and who are nothing of or by themselves, more than other men.
Again, the thing signified by rebellion is not always evil; for tho every subdued nation must acknowledge a superiority in those who have subdued them, and rebellion do imply a breach of the peace, yet that superiority is not infinite; the peace may be broken upon just grounds, and it may be neither a crime nor infamy to do it. The Privernates had been more than once subdued by the Romans, and had as often rebelled. Their city was at last taken by Plautius the consul, after their leader Vitruvius and great numbers of their senate and people had been kill’d: Being reduced to a low condition, they sent ambassadors to Rome to desire peace; where when a senator asked them what punishment they deserved, one of them answered, The same which they deserve who think themselves worthy of liberty. The consul then demanded, what kind of peace might be expected from them, if the punishment should be remitted: The ambassador answer’d, If the terms you give be good, the peace will be observed by us faithfully and perpetually; if bad, it will soon be broken. 1 And tho some were offended with the ferocity of the answer; yet the best part of the senate approved it as wortby of a man and a freeman; 2 and confessing that no man or nation would continue under an uneasy condition longer than they were compell’d by force, said, They only were fit to be made Romans, who thought nothing valuable but liberty. 3 Upon which they were all made citizens of Rome, and obtained whatsoever they had desired.
I know not how this matter can be carried to a greater height; for if it were possible, that a people resisting oppression, and vindicating their own liberty, could commit a crime, and incur either guilt or infamy, the Privernates did, who had been often subdued, and often pardoned; but even in the judgment of their conquerors whom they had offended, the resolution they professed of standing to no agreement imposed upon them by necessity, was accounted the highest testimony of such a virtue as rendered them worthy to be admitted into a society and equality with themselves, who were the most brave and virtuous people of the world.
But if the patience of a conquer’d people may have limits, and they who will not bear oppression from those who had spared their lives, may deserve praise and reward from their conquerors, it would be madness to think, that any nation can be obliged to bear whatsoever their own magistrates think fit to do against them. This may seem strange to those who talk so much of conquests made by kings; immunities, liberties and privileges granted to nations; oaths of allegiance taken, and wonderful benefits conferred upon them. But having already said as much as is needful concerning conquests, and that the magistrate who has nothing except what is given to him, can only dispense out of the publick stock such franchises and privileges as he has received for the reward of services done to the country, and encouragement of virtue, I shall at present keep myself to the two last points.
Allegiance signifies no more (as the words, ad legem declare) than such an obedience as the law requires. But as the law can require nothing from the whole people, who are masters of it, allegiance can only relate to particulars, and not to the whole. No oath can bind any other than those who take it, and that only in the true sense and meaning of it: but single men only take this oath, and therefore single men are only obliged to keep it: the body of a people neither does, nor can perform any such act: Agreements and contracts have been made; as the tribe of Judah, and the rest of Israel afterward, made a covenant with David, upon which they made him king; but no wise man can think, that the nation did thereby make themselves the creature of their own creature.
The sense also of an oath ought to be considered. No man can by an oath be obliged to anything beyond, or contrary to the true meaning of it: private men who swear obedience ad legem, swear no obedience extra or contra legem: whatsoever they promise or swear, can detract nothing from the publick liberty, which the law principally intends to preserve. Tho many of them may be obliged in their several stations and capacities to render peculiar services to a prince, the people continue as free as the internal thoughts of a man, and cannot but have a right to preserve their liberty, or avenge the violation.
If matters are well examined, perhaps not many magistrates can pretend to much upon the title of merit, most especially if they or their progenitors have continued long in office. The conveniences annexed to the exercise of the sovereign power, may be thought sufficient to pay such scores as they grow due, even to the best: and as things of that nature are handled, I think it will hardly be found, that all princes can pretend to an irresistible power upon the account of beneficence to their people. When the family of Medici came to be masters of Tuscany, that country was without dispute, in men, money and arms, one of the most flourishing provinces in the world, as appears by Machiavelli’s account, and the relation of what happened between Charles the eighth and the magistrates of Florence, which I have mentioned already from Guicciardini. Now whoever shall consider the strength of that country in those days, together with what it might have been in the space of a hundred and forty years, in which they have had no war, nor any other plague, than the extortion, fraud, rapine and cruelty of their princes, and compare it with their present desolate, wretched and contemptible condition, may, if he please, think that much veneration is due to the princes that govern them, but will never make any man believe that their title can be grounded upon beneficence. The like may be said of the duke of Savoy, who pretending (upon I know not what account) that every peasant in the duchy ought to pay him two crowns every half year, did in 1662 subtly find out, that in every year there were thirteen halves; so that a poor man who had nothing but what he gained by hard labour, was through his fatherly care and beneficence, forced to pay six and twenty crowns to his royal highness, to be employ’d in his discrete and virtuous pleasures at Turin.
The condition of the seventeen provinces of the Netherlands (and even of Spain itself) when they fell to the house of Austria, was of the same nature: and I will confess as much as can be required, if any other marks of their government do remain, than such as are manifest evidences of their pride, avarice, luxury and cruelty.
France in outward appearance makes a better show; but nothing in this world is more miserable, than that people under the fatherly care of their triumphant monarch. The best of their condition is like asses and mastiff-dogs, to work and fight, to be oppressed and kill’d for him; and those among them who have any understanding well know, that their industry, courage, and good success, is not only unprofitable, but destructive to them; and that by increasing the power of their master, they add weight to their own chains. And if any prince, or succession of princes, have made a more modest use of their power, or more faithfully discharged the trust reposed in them, it must be imputed peculiarly to them, as a testimony of their personal virtue, and can have no effect upon others.
The rights therefore of kings are not grounded upon conquest; the liberties of nations do not arise from the grants of their princes; the oath of allegiance binds no private man to more than the law directs, and has no influence upon the whole body of every nation: Many princes are known to their subjects only by the injuries, losses and mischiefs brought upon them; such as are good and just, ought to be rewarded for their personal virtue, but can confer no right upon those who no way resemble them; and whoever pretends to that merit, must prove it by his actions: Rebellion being nothing but a renewed war, can never be against a government that was not established by war, and of itself is neither good nor evil, more than any other war; but is just or unjust according to the cause or manner of it. Besides, that rebellion which by Samuel is compar’d to witchcraft, is not of private men, or a people against the prince, but of the prince against God: 4 The Israelites are often said to have rebelled against the law, word, or command of God; but tho they frequently opposed their kings, I do not find rebellion imputed to them on that account, nor any ill character put upon such actions. We are told also of some kings who had been subdued, and afterwards rebelled against Chedorlaomer and other kings; but their cause is not blamed, and we have some reason to believe it good, because Abraham took part with those who had rebelled. 5 However it can be of no prejudice to the cause I defend: for tho it were true, that those subdued kings could not justly rise against the person who had subdued them; or that generally no king being once vanquished, could have a right of rebellion against his conqueror, it could have no relation to the actions of a people vindicating their own laws and liberties against a prince who violates them; for that war which never was, can never be renewed. And if it be true in any case, that hands and swords are given to men, that they only may be slaves who have no courage, it must be when liberty is overthrown by those, who of all men ought with the utmost industry and vigour to have defended it.
That this should be known, is not only necessary for the safety of nations, but advantageous to such kings as are wise and good. They who know the frailty of human nature, will always distrust their own; and desiring only to do what they ought, will be glad to be restrain’d from that which they ought not to do. Being taught by reason and experience, that nations delight in the peace and justice of a good government, they will never fear a general insurrection, whilst they take care it be rightly administered; and finding themselves by this means to be safe, will never be unwilling, that their children or successors should be obliged to tread in the same steps.
If it be said that this may sometimes cause disorders, I acknowledge it; but no human condition being perfect, such a one is to be chosen, which carries with it the most tolerable inconveniences: And it being much better that the irregularities and excesses of a prince should be restrained or suppressed, than that whole nations should perish by them, those constitutions that make the best provision against the greatest evils, are most to be commended. If governments were instituted to gratify the lusts of one man, those could not be good that set limits to them; but all reasonable men confessing that they are instituted for the good of nations, they only can deserve praise, who above all things endeavour to procure it, and appoint means proportioned to that end. The great variety of governments which we see in the world, is nothing but the effect of this care; and all nations have been, and are more or less happy, as they or their ancestors have had vigour of spirit, integrity of manners, and wisdom to invent and establish such orders, as have better or worse provided for this common good, which was sought by all. But as no rule can be so exact, to make provision against all contestations; and all disputes about right do naturally end in force when justice is denied (ill men never willingly submitting to any decision that is contrary to their passions and interests) the best constitutions are of no value, if there be not a power to support them. This power first exerts itself in the execution of justice by the ordinary officers: But no nation having been so happy, as not sometimes to produce such princes as Edward and Richard the Seconds, and such ministers as Gaveston, Spencer, and Tresilian, the ordinary officers of justice often want the will, and always the power to restrain them. So that the rights and liberties of a nation must be utterly subverted and abolished, if the power of the whole may not be employed to assert them, or punish the violation of them. But as it is the fundamental right of every nation to be governed by such laws, in such manner, and by such persons as they think most conducing to their own good, they cannot be accountable to any but themselves for what they do in that most important affair.
I am not ignorant that many honest and good men acknowledging these rights, and the care of our ancestors to preserve them, think they wanted wisdom rightly to proportionate the means to the end. ’Tis not enough, say they, for the general of an army to desire victory; he only can deserve praise, who has skill, industry, and courage to take the best measures of obtaining it. Neither is it enough for wise legislators to preserve liberty, and to erect such a government as may stand for a time; but to set such clear rules to those who are to put it in execution, that every man may know when they transgress; and appoint such means for restraining or punishing them, as may be used speedily, surely, and effectually, without danger to the publick. Sparta being thus constituted, we hardly find that, for more than eight hundred years, any king presumed to pass the limits prescribed by the law. If any Roman consul grew insolent, he might be reduced to order without blood, or danger to the publick; and no dictator ever usurped a power over liberty till the time of Sulla, when all things in the city were so changed, that the ancient foundations were become too narrow. In Venice the power of the duke is so circumscribed, that in 1300 years, no one except Falerio and Tiepoli, has dared to attempt anything against the laws: and they were immediately suppressed with little commotion in the city. On the other side, our law is so ambiguous, perplexed and intricate, that ’tis hard to know when ’tis broken. In all the publick contests we have had, men of good judgment and integrity have follow’d both parties. The means of transgressing and procuring partizans to make good by force the most notorious violations of liberty, have been so easy, that no prince who has endeavoured it, ever failed to get great numbers of followers, and to do infinite mischiefs before he could be removed. The nation has been brought to fight against those they had made to be what they were, upon the unequal terms of hazarding all against nothing. If they had success, they gained no more than was their own before, and which the law ought to have secured: whereas ’tis evident, that if at any one time the contrary had happened, the nation had been utterly enslaved; and no victory was ever gained without the loss of much noble and innocent blood.
To this I answer, that no right judgment can be given of human things, without a particular regard to the time in which they passed. We esteem Scipio, Hannibal, Pyrrhus, Alexander, Epaminondas and Caesar, to have been admirable commanders in war, because they had in a most eminent degree all the qualities that could make them so, and knew best how to employ the arms then in use according to the discipline of their times; and yet no man doubts, that if the most skilful of them could be raised from the grave, restored to the utmost vigour of mind and body, set at the head of the best armies he ever commanded, and placed upon the frontiers of France or Flanders, he would not know how to advance or retreat, nor by what means to take any of the places in those parts, as they are now fortified and defended; but would most certainly be beaten by any insignificant fellow with a small number of men, furnished with such arms as are now in use, and following the methods now practiced. Nay, the manner of marching, encamping, besieging, attacking, defending and fighting, is so much altered within the last threescore years, that no man observing the discipline that was then thought to be the best, could possibly defend himself against that which has been since found out, tho the terms are still the same. And if it be consider’d that political matters are subject to the same mutations (as certainly they are) it will be sufficient to excuse our ancestors, who suiting their government to the ages in which they lived, could neither foresee the changes that might happen in future generations, nor appoint remedies for the mischiefs they did not foresee.
They knew that the kings of several nations had been kept within the limits of the law, by the virtue and power of a great and brave nobility; and that no other way of supporting a mix’d monarchy had ever been known in the world, than by putting the balance into the hands of those who had the greatest interest in nations, and who by birth and estate enjoy’d greater advantages than kings could confer upon them for rewards of betraying their country. They knew that when the nobility was so great as not easily to be number’d, the little that was left to the king’s disposal, was not sufficient to corrupt many; and if some might fall under the temptation, those who continued in their integrity, would easily be able to chastise them for deserting the publick cause, and by that means deter kings from endeavouring to seduce them from their duty. Whilst things continued in this posture, kings might safely be trusted (with the advice of their council) to confer the commands of the militia in towns and provinces upon the most eminent men in them: And whilst those kings were exercised in almost perpetual wars, and placed their glory in the greatness of the actions they achieved by the power and valour of their people, it was their interest always to chuse such as seemed best to deserve that honour. It was not to be imagined that through the weakness of some, and malice of others, those dignities should by degrees be turned into empty titles, and become the rewards of the greatest crimes, and the vilest services; or that the noblest of their descendants for want of them, should be brought under the name of commoners, and deprived of all privileges except such as were common to them with their grooms. Such a stupendous change being in process of time insensibly introduced, the foundations of that government which they had established, were removed, and the superstructure overthrown. The balance by which it subsisted was broken; and ’tis as impossible to restore it, as for most of those who at this day go under the name of noblemen, to perform the duties required from the ancient nobility of England. And tho there were a charm in the name, and those who have it, should be immediately filled with a spirit like to that which animated our ancestors, and endeavour to deserve the honors they possess, by such services to the country as they ought to have perform’d before they had them, they would not be able to accomplish it. They have neither the interest nor the estates required for so great a work. Those who have estates at a rack rent, have no dependents. Their tenants, when they have paid what is agreed, owe them nothing; and knowing they shall be turn’d out of their tenements, as soon as any other will give a little more, they look upon their lords as men who receive more from them than they confer upon them. This dependence being lost, the lords have only more money to spend or lay up than others, but no command of men; and can therefore neither protect the weak, nor curb the insolent. By this means all things have been brought into the hands of the king and the commoners, and there is nothing left to cement them, and to maintain the union. The perpetual jarrings we hear every day; the division of the nation into such factions as threaten us with ruin, and all the disorders that we see or fear, are the effects of this rupture. These things are not to be imputed to our original constitutions, but to those who have subverted them: And if they who by corrupting, changing, enervating and annihilating the nobility, which was the principal support of the ancient regular monarchy, have driven those who are truly noblemen into the same interest and name with the commons, and by that means increased a party which never was, and I think never can be united to the court, they are to answer for the consequences; and if they perish, their destruction is from themselves.
The inconveniences therefore proceed not from the institution, but from the innovation. The law was plain, but it has been industriously rendered perplex: They who were to have upheld it are overthrown. That which might have been easily performed when the people was armed, and had a great, strong, virtuous and powerful nobility to lead them, is made difficult, now they are disarmed, and that nobility abolished. Our ancestors may evidently appear, not only to have intended well, but to have taken a right course to accomplish what they intended. This had effect as long as the cause continued; and the only fault that can be ascribed to that which they established is, that it has not proved to be perpetual; which is no more than may be justly said of the best human constitutions that ever have been in the world. If we will be just to our ancestors, it will become us in our time rather to pursue what we know they intended, and by new constitutions to repair the breaches made upon the old, than to accuse them of the defects that will forever attend the actions of men. Taking our affairs at the worst, we shall soon find, that if we have the same spirit they had, we may easily restore our nation to its ancient liberty, dignity and happiness; and if we do not, the fault is owing to ourselves, and not to any want of virtue and wisdom in them.
The original of magistratical power, the intention of our ancestors in its creation, and the ways prescribed for the direction and limitation of it may, I presume, sufficiently appear by what has been said. But because our author, taking hold of every twig, pretends that kings may call and dissolve parliaments at their pleasure , and from thence infers the power to be wholly in them; alleges the various customs in several parts of this nation used in the elections of parliament men, to proceed from the king’s will; and because a people may commit errors, thinks all power ought to be put into the hands of the king: 1
I answer, 1. That the power of calling and dissolving parliaments is not simply in kings. They may call parliaments, if there be occasion, at times when the law does not exact it; they are placed as sentinels, and ought vigilantly to observe the motions of the enemy, and give notice of his approach: But if the sentinel fall asleep, neglect his duty, or maliciously endeavour to betray the city, those who are concern’d may make use of all other means to know their danger, and to preserve themselves. The ignorance, incapacity, negligence or luxury of a king, is a great calamity to a nation, and his malice is worse, but not an irreparable ruin. Remedies may be, and often have been found against the worst of their vices. The last French kings of the races of Meroveus and Pepin brought many mischiefs upon the kingdom, but the destruction was prevented. Edward and Richard the Seconds of England were not unlike them, and we know by what means the nation was preserved. The question was not who had the right, or who ought to call parliaments, but how the commonwealth might be saved from ruin. The consuls, or other chief magistrates in Rome, had certainly a right of assembling and dismissing the senate: But when Hannibal was at the gates, or any other imminent danger threatened them with destruction; if that magistrate had been drunk, mad, or gained by the enemy, no wise man can think that formalities were to have been observed. In such cases every man is a magistrate; and he who best knows the danger, and the means of preventing it, has a right of calling the senate or people to an assembly. The people would, and certainly ought to follow him, as they did Brutus and Valerius against Tarquin, or Horatius and Valerius against the decemviri; and whoever should do otherwise, might for sottishness be compared to the courtiers of the two last kings of Spain. The first of these, by name Philip the third, being indisposed in cold weather, a braziero of coals was brought into his chamber, and placed so near to him, that he was cruelly scorched. A nobleman then present said to one who stood by him, the king burns; the other answered, it was true, but the page, whose office it was to bring and remove the braziero, was not there; and before he could be found, his majesty’s legs and face were so burnt, that it caus’d an erysipelas, of which he died. Philip the fourth escaped not much better, who being surprised as he was hunting by a violent storm of rain and hail, and no man presuming to lend the king a cloak, he was so wet before the officer could be found who carried his own, that he took a cold, which cast him into a dangerous fever. If kings like the consequences of such a regularity, they may cause it to be observed in their own families; but nations looking in the first place to their own safety, would be guilty of the most extreme stupidity, if they should suffer themselves to be ruined for adhering to such ceremonies.
This is said upon a supposition, that the whole power of calling and dissolving parliaments, is by the law placed in the king: but I utterly deny that it is so; and to prove it, shall give the following reasons.
(1.) That the king can have no such power, unless it be given to him, for every man is originally free; and the same power that makes him king, gives him all that belongs to his being king. ’Tis not therefore an inherent, but a delegated power; and whoever receives it, is accountable to those that gave it; for, as our author is forced to confess, they who give authority by commission, do always retain more than they grant. 2
(2.) The law for annual parliaments expressly declares it not to be in the king’s power, as to the point of their meeting, nor consequently their continuance. For they meet to no purpose if they may not continue to do the work for which they meet; and it were absurd to give them a power of meeting, if they might not continue till it be done: For, as Grotius says, Qui dat finem, dat media ad finem necessaria. 3 The only reason why parliaments do meet, is to provide for the publick good; and they by law ought to meet for that end. They ought not therefore to be dissolved, till it be accomplished. For this reason the opinion given by Tresilian, that kings might dissolve parliaments at their pleasure, was judged to be a principal part of his treason.
(3.) We have already proved, that Saxons, Danes, Normans, c. who had no title to the crown, were made kings by micklegemotes, witenagemotes, and parliaments; that is, either by the whole people, or their representatives: Others have been by the same authority restrained, brought to order, or deposed. But as it is impossible that such as were not kings, and had no title to be kings, could by virtue of a kingly power call parliaments, when they had none; and absurd to think that such as were in the throne, who had not govern’d according to law, would suffer themselves to be restrain’d, imprisoned, or deposed by parliaments, called and sitting by themselves, and still depending upon their will to be or not to be; ’tis certain that parliaments have in themselves a power of sitting and acting for the publick good.
2. To the second. The various customs used in elections are nothing to this question. In the counties, which make up the body of the nation, all freeholders have their votes: these are properly cives, members of the commonwealth, in distinction from those who are only incolae, or inhabitants, villains, and such as being under their parents, are not yet sui juris. These in the beginning of the Saxons’ reign in England, composed the micklegemotes; and when they grew to be so numerous that one place could not contain them, or so far dispersed, that without trouble and danger they could not leave their habitations, they deputed such as should represent them. When the nation came to be more polished, to inhabit cities and towns, and to set up several arts and trades; those who exercised them were thought to be as useful to the commonwealth, as the freeholders in the country, and to deserve the same privileges. But it not being reasonable that everyone should in this case do what he pleased, it was thought fit that the king with his council (which always consisted of the proceres and magnates regni 4 ) should judge what numbers of men, and what places deserved to be made corporations or bodies politick, and to enjoy those privileges, by which he did not confer upon them anything that was his, but according to the trust reposed in him, did dispense out of the publick stock parcels of what he had received from the whole nation: And whether this was to be enjoy’d by all the inhabitants, as in Westminster; by the common hall, as in London; or by the mayor, aldermen, jurats and corporation, as in other places, ’tis the same thing: for in all these cases the king does only distribute, not give, and under the same condition that he might call parliaments, that is, for the publick good. This indeed increases the honor of the person entrusted, and adds weight to the obligation incumbent upon him; but can never change the nature of the thing, so as to make that an inherent, which is only a delegated power. And as parliaments, when occasion required, have been assembled, have refus’d to be dissolved till their work was finished, have severely punished those who went about to persuade kings, that such matters depended absolutely upon their will, and made laws to the contrary: ’tis not to be imagined, that they would not also have interposed their authority in matters of charters, if it had been observed that any king had notoriously abused the trust reposed in him, and turned the power to his private advantage, with which he was entrusted for the publick good.
That which renders this most plain and safe, is, that men chosen in this manner to serve in parliament, do not act by themselves, but in conjunction with others who are sent thither by prescription; nor by a power derived from kings, but from those that chuse them. If it be true therefore that those who delegate powers, do always retain to themselves more than they give, they who send these men, do not give them an absolute power of doing whatsoever they please, but retain to themselves more than they confer upon their deputies: They must therefore be accountable to their principals, contrary to what our author asserts. This continues in force, tho he knows not, that any knights and burgesses have ever been questioned by those that sent them; 5 for it cannot be concluded they ought not, or may not be question’d, because none have been questioned. But in truth they are frequently questioned: The people do perpetually judge of the behaviour of their deputies. Whensoever any of them has the misfortune not to satisfy the major part of those that chose him, he is sure to be rejected with disgrace the next time he shall desire to be chosen. This is not only a sufficient punishment for such faults, as he who is but one of five hundred may probably commit, but as much as the greatest and freest people of the world did ever inflict upon their commanders that brought the greatest losses upon them. Appius Claudius, Pomponius, and Terentius Varro, survived the greatest defeats that ever the Romans suffer’d; and tho they had caused them by their folly and perverseness, were never punished. Yet I think no man doubts that the Romans had as much right over their own officers, as the Athenians and Carthaginians, who frequently put them to death. They thought the mind of a commander would be too much distracted, if at the same time he should stand in fear both of the enemy and his own countrymen: And as they always endeavoured to chuse the best men, they would lay no other necessity upon them of performing their duty, than what was suggested by their own virtue and love to their country. ’Tis not therefore to be thought strange, if the people of England have follow’d the most generous and most prosperous examples. Besides, if anything has been defective in their usual proceedings with their delegates, the inconvenience has been repaired by the modesty of the best and wisest of them that were chosen. Many in all ages, and sometimes the whole body of the commons, have refused to give their opinion in some cases, till they had consulted with those that sent them: The houses have been often adjourned to give them time to do it; and if this were done more frequently, or that the towns, cities and counties, had on some occasions given instructions to their deputies, matters would probably have gone better in parliament than they have often done.
3. The question is not, whether the parliament be impeccable or infallible, but whether an assembly of nobility, with a house of commons composed of those who are best esteemed by their neighbors in all the towns and counties of England, are more or less subject to error or corruption, than such a man, woman or child, as happens to be next in blood to the last king. Many men do usually see more than one; and if we may believe the wisest king, In the multitude of counsellors, there is safety. 6 Such as are of mature age, good experience, and approved reputation for virtue and wisdom, will probably judge better than children or fools. Men are thought to be more fit for war than women; and those who are bred up in discipline, to understand it better than those who never knew anything of it. If some counties or cities fail to chuse such men as are eminently capable, all will hardly be so mistaken as to chuse those who have no more of wisdom or virtue, than is usually entail’d upon families. But Filmer at a venture admires the profound wisdom of the king; tho besides such as we have known, histories give us too many proofs, that all those who have been possessed of crowns, have not excelled that way. He speaks of kings in general, and makes no difference between Solomon and his foolish son. He distinguishes not our Edward the first from Edward the second; Edward the third from Richard the second; or Henry the fifth from Henry the sixth. And because all of them were kings, all of them, if he deserves credit, must needs have been endow’d with profound wisdom. David was wise as an angel of God; therefore the present kings of France, Spain and Sweden, must have been so also, when they were but five years old: Joan of Castile could not be mad, nor the two Joans of Naples infamous strumpets, or else all his arguments fall to the ground. For tho Solomon’s wisdom surpassed that of all the people, yet men could not rely equally upon that of Rehoboam, unless it had been equal. And if they are all equal in wisdom when they come to be equally kings, Perseus of Macedon was as great a captain as Philip or Alexander; Commodus and Heliogabalus were as wise and virtuous as Marcus Aurelius and Antoninus Pius: nay, Christina of Sweden in her infancy was as fit to command an army as her valiant father. If this be most absurd and false, there can be neither reason nor sense in proposing, as our author does, that the power should be in the king, because the parliament is not infallible. It is, says he, for the head to correct, and not to expect the consent of the members or parties peccant to be judges in their own cases; nor is it needful to confine the king, c. 7 Besides that this is directly contrary to his own fundamental maxim, that no man must be the judge of his own case, in as much as this would put the power into the king’s hands, to decide the controversies between himself and the people, in which his own passions, private interest, and the corrupt counsels of ill ministers, will always lead him out of the way of justice, the inconveniences that may arise from a possibility that the parliament or people is not infallible, will be turned to the most certain and destructive mischiefs; as must have fallen out in Spain, if, upon a supposition that the estates of Castile might err, the correction of such errors had been left to the profound wisdom and exquisite judgment of Joan their queen and head, who was stark mad. And the like may be said of many other princes, who through natural or accidental infirmities, want of age, or dotage, have been utterly unable to judge of anything.
The matter will not be much mended, tho I pass from idiots and lunaticks, to such as know well enough how to clothe and feed themselves, and to perform the ordinary functions of life; and yet have been as uncapable of giving a right judgment concerning the weighty matters of government, as the weakest of children, or the most furious of madmen. Good manners forbid me to enumerate the examples of this kind, which Europe has produced even in this age: But I should commit a greater fault, if I did in silence pass over the extravagances of those, who being most weak in judgment, and irregular in their appetites, have been most impatient of any restraint upon their will. The brave Gustavus Adolphus, and his nephew Carolus Gustavus, who was not inferior to him in valour, wisdom, and love to his people, were content with the power that the laws of their country gave to them: But Frederick the fourth of Denmark never rested till he had overthrown the liberty of that nation. Casimir by attempting the like in Poland, lost almost half of that kingdom; and flying from the other, left all to be ravaged by Swedes, Tartars, and Cossacks. The present emperor 8 who passed his time in setting songs in musick with a wretched Italian eunuch, when he ought to have been at the head of a brave army, raised to oppose the Turks in the year 1664, and which under good conduct might have overthown the Ottoman empire, as soon as he was delivered from the fear of that enemy, fell upon his own subjects with such cruelty, that they are now forced to fly to the Turks for protection; the Protestants especially, who find their condition more tolerable under those professed enemies to Christianity, than to be exposed to the pride, avarice, perfidiousness and violence of the Jesuits by whom he is governed. And the qualities of the king of Portugal 9 are so well known, together with the condition to which he would have brought his kingdom if he had not been sent to the Terceiras, that I need not speak particularly of him.
If kings therefore, by virtue of their office, are constituted judges over the body of their people, because the people, or parliaments representing them, are not infallible; those kings who are children, fools, disabled by age, or madmen, are so also; women have the same right where they are admitted to the succession; those men who, tho of ripe age and not superannuated, nor directly fools or madmen, yet absolutely uncapable of judging important affairs, or by their passions, interests, vices, or malice and wickedness of their ministers, servants and favorites, are set to oppress and ruin the people, enjoy the same privilege; than which nothing can be imagined more absurd and abominable, nor more directly tending to the corruption and destruction of the nations under them, for whose good and safety our author confesses they have their power.
The worst of men seldom arrive to such a degree of impudence, as plainly to propose the most mischievous follies and enormities. They who are enemies to virtue, and fear not God, are afraid of men, and dare not offer such things as the world will not bear, lest by that means they should overthrow their own designs. All poison must be disguised, and no man can be persuaded to eat arsenic, unless it be cover’d with something that appears to be harmless. Creusa would have abhorr’d Medea’s present, if the pestilent venom had not been hidden by the exterior lustre of gold and gems. The garment that destroy’d Hercules appear’d beautiful; 1 and Eve had neither eaten of the forbidden tree, nor given the fruit to her husband, if it had not seemed to be good and pleasant, and she had not been induced to believe that by eating it they should both be as gods. The servants of the Devil have always followed the same method: their malice is carried on by fraud, and they have seldom destroy’d any, but such as they had first deceived. Truth can never conduce to mischief, and is best discovered by plain words; but nothing is more usual with ill men than to cover their mischievous designs with figurative phrases. It would be too ridiculous to say in plain terms, that all kings without distinction are better able to judge of all matters than any or all their people; they must therefore be called the head, that thereby they may be invested with all the preeminences which in a natural body belong to that part; and men must be made to believe the analogy between the natural and political body to be perfect. But the matter must be better examined before this mortal poison seem fit to be swallowed.
The word head is figuratively used both in Scripture and profane authors in several senses, in relation to places or persons, and always implies something of real or seeming preeminence in point of honor or jurisdiction. Thus Damascus is said to be the head of Syria; Samaria of Ephraim, and Ephraim of the ten tribes: 2 that is, Ephraim was the chief tribe; Samaria was the chief city of Ephraim, and Damascus of Syria; tho it be certain that Ephraim had no jurisdiction over the other tribes, nor Samaria over the other cities of Ephraim, but every one according to the law had an equal power within itself, or the territories belonging to it; and no privileges were granted to one above another, except to Jerusalem, in the matter of religion, because the Temple was placed there.
The words also head, prince, principal man, or captain, seem to be equivocal; and in this sense the same men are called heads of the tribes, princes in the houses of their fathers: and ’tis said, that two hundred heads of the tribe of Reuben were carried away captive by Tiglathpileser, 3 and proportionably in the other tribes; which were a strange thing, if the word did imply that supreme, absolute and infinite power that our author attributes to it: and no man of less understanding than he, can comprehend how there should be two hundred or more sovereign unlimited powers in one tribe, most especially when ’tis certain that one series of kings had for many ages reigned over that tribe and nine more; and that every one of those tribes, as well as the particular cities, even from their first entrance into the promised land, had a full jurisdiction within itself. When the Gileadites came to Jephthah, he suspected them, and asked whether indeed they intended to make him their head? they answered, if he would lead them against the Ammonites, he should be their head. 4 In the like sense when Jul. Caesar in despair would have killed himself, one of his soldiers dissuaded him from that design, by telling him, That the safety of so many nations that had made him their head, depending upon his life, it would be cruelty in him to take such a resolution. 5 But for all that, when this head was taken off, the body did still subsist: upon which I observe many fundamental differences between the relation of this figurative head (even when the word is rightly applied) and that of the natural head to their respective bodies.
The figurative heads may be many, the natural but one.
The people makes or creates the figurative head, the natural is from itself, or connate with the body.
The natural body cannot change or subsist without the natural head; but a people may change and subsist very well without the artificial. Nay, if it had been true, that the world had chosen Caesar, as it was not (for he was chosen only by a factious mercenary army, and the soundest part so far opposed that election, that they brought him to think of killing himself) there could have been no truth in this flattering assertion, That the safety of the whole depended upon his life: for the world could not only subsist without him, but without any such head, as it had done, before he by the help of his corrupted soldiery had usurped the power; which also shews that a civil head may be a matter of convenience, but not of necessity. Many nations have had none; and if the expression be so far stretched, as to make it extend to the annual or temporary magistrates set up by the Athenians, Carthaginians, Romans, and other ancient commonwealths, or to those at this day in Venice, Holland, Switzerland, and other places, it must be confess’d that the people who made, deposed, abrogated, or abolished both the magistrates and magistracies, had the power of framing, directing and removing their heads, which our author will say is most absurd. Yet they did it without any prejudice to themselves, and very often much to their advantage.
In mentioning these vast and essential differences between the natural and political head, I no way intend to exclude others that may be of equal weight; but as all figurative expressions have their strength only from similitude, there can be little or none in this, which differs in so many important points, and can therefore be of no effect.
However, right proceeds from identity, and not from similitude. The right of a man over me is by being my father, and not by being like my father. If I had a brother so perfectly resembling me as to deceive our parents, which has sometimes happened to twins, it could give him no right to anything that is mine. If the power therefore of correcting the parties peccant, which our author attributes to kings, be grounded upon the name of head, and a resemblance between the heads of the body politick and body natural; if this resemblance be found to be exceedingly imperfect, uncertain, or perhaps no way relating to the matter in question; or tho it did, and were absolutely perfect, could confer no right; the allegation of it is impertinent and absurd.
This being cleared, ’tis time to examine, what the office of the head is in a natural body, that we may learn from thence why that name is sometimes given to those who are eminent in political bodies, and to whom it does belong.
Some men account the head to be so absolutely the seat of all the senses, as to derive even that of feeling, which is exercised in every part, from the brain: but I think ’tis not doubted that all the rest have both their seat and function in the head; and whatsoever is useful or hurtful to a man, is by them represented to the understanding; as Aristotle says, Nihil est in intellectu, quod non sit prius in sensu. 6 This is properly the part of every magistrate: He is the sentinel of the publick, and is to represent what he discovers beneficial or hurtful to the society; which office belongs not only to the supreme, but proportionably to the subordinate. In this sense were the chief men among the Israelites called heads of their father’s house, choice and mighty men of valour, chief of the princes. 7 And in the following chapter mention is made of nine hundred and fifty Benjaminites, chief men in the house of their fathers. 8 These men exercised a charitable care over such as were inferior to them in power and valour, without any shadow of sovereignty, or possibility that there could be so many sovereigns: and such as were under their care are said to be their brethren; which is not a word of majesty and domination, but of dearness and equality. The name therefore of head may be given to a sovereign, but it implies nothing of sovereignty; and must be exercised with charity, which always terminates in the good of others. The head cannot correct or chastise; the proper work of that part is only to indicate, and he who takes upon him to do more, is not the head. A natural body is homogeneous, and cannot subsist if it be not so. We cannot take one part of a horse, another of a bear, and put upon them the head of a lion; for it would be a monster, that would have neither action nor life. The head must be of the same nature with the other members, or it cannot subsist. But the lord or master differs in specie 9 from his servants and slaves, he is not therefore properly their head.
Besides, the head cannot have a subsistence without the body, nor any interest contrary to that of the body; and ’tis impossible for anything to be good for the head, that is hurtful to the body. A prince therefore, or magistrate, who sets up an interest in himself distinct from, or repugnant to that of the people, renounces the title or quality of their head. Indeed, Moses was the head of the Israelites; for when God threatened to destroy that people, and promised to make him a great nation, he waived the particular advantages offer’d to himself, interceded for them, and procured their pardon. Yet he was not able to bear the weight of the government alone, but desired that some might be appointed to assist him. Gideon was the head of the same people, but he would not reign himself, nor suffer his sons to reign over them. Samuel was also their head; he took nothing from any man, defrauded none, took bribes from no man, oppressed none; God and the people were his witnesses: He blamed them for their rebellion against God in asking a king, but was no way concerned for himself or his family. David likewise had a right to that title; for he desired that God would spare the people, and turn the effect of his anger against himself, and the house of his father. But Rehoboam was not their head; for tho he acknowledged that his father had laid a heavy yoke upon them, yet he told them he would add to the weight; and that if his father had chastised them with whips, he would chastise them with scorpions. The head is no burden to the body, and can lay none upon it; the head cannot chastise any member; and he who does so, be it more or less, cannot be the head. Jeroboam was not the head of the revolting tribes; for the head takes care of the members, and to provide for the safety of the whole: But he through fear that the people going to Jerusalem to worship, should return to the house of David, by setting up idols to secure his own interests, drew guilt and destruction upon them. Tho it should be granted that Augustus by a gentle use of his power, had in a manner expiated the detestable villainies committed in the acquisition, and had truly deserved to be called the head of the Romans; yet that title could no way belong to Caligula, Claudius, Nero or Vitellius, who neither had the qualities requir’d in the head, nor the understanding or will to perform the office. Nay, if I should carry the matter farther, and acknowledge that Brutus, Cincinnatus, Fabius, Camillus, and others, who in the time of their annual or shorter magistracies, had by their vigilance, virtue and care to preserve the city in safety, and to provide for the publick good, performed the office of the head, and might deserve the name; I might justly deny it to the greatest princes that have been in the world, who having their power for life, and leaving it to descend to their children, have wanted the virtues requir’d for the performance of their duty: And I should less fear to be guilty of an absurdity in saying, that a nation might every year change its head, than that he can be the head, who cares not for the members, nor understands the things that conduce to their good, most especially if he set up an interest in himself against them. It cannot be said that these are imaginary cases, and that no prince does these things; for the proof is too easy, and the examples too numerous. Caligula could not have wished the Romans but one head, that he might cut it off at once, if he had been that head, and had advanced no interest contrary to that of the members. Nero had not burn’d the city of Rome, if his concernments had been inseparably united to those of the people. He who caused above three hundred thousand of his innocent unarmed subjects to be murder’d, and fill’d his whole kingdom with fire and blood, did set up a personal interest repugnant to that of the nation; and no better testimony can be requir’d to shew that he did so, than a letter written by his son, to take off the penalty due to one of the chief ministers of those cruelties, for this reason, that what he had done, was by the command and for the service of his royal father . 10 King John did not pursue the advantage of his people, when he endeavoured to subject them to the pope or the Moors. And whatever prince seeks assistance from foreign powers, or makes leagues with any stranger or enemy for his own advantage against his people, however secret the treaty may be, declares himself not to be the head, but an enemy to them. The head cannot stand in need of an exterior help against the body, nor subsist when divided from it. He therefore that courts such an assistance, divides himself from the body; and if he do subsist, it must be by a life he has in himself, distinct from that of the body, which the head cannot have.
But besides these enormities, that testify the most wicked rage and fury in the highest degree, there is another practice, which no man that knows the world can deny to be common with princes, and incompatible with the nature of a head. The head cannot desire to draw all the nourishment of the body to itself, nor more than a due proportion. If the rest of the parts are sick, weak or cold, the head suffers equally with them, and if they perish must perish also. Let this be compared with the actions of many princes we know, and we shall soon see which of them are heads of their people. If the gold brought from the Indies has been equally distributed by the kings of Spain to the body of that nation, I consent they may be called the heads. If the kings of France assume no more of the riches of that great kingdom than their due proportion, let them also wear that honourable name. But if the naked backs and empty bellies of their miserable subjects evince the contrary, it can by no means belong to them. If those great nations waste and languish; if nothing be so common in the best provinces belonging to them, as misery, famine, and all the effects of the most outrageous oppression, whilst their princes and favorites possess such treasures as the most wanton prodigality cannot exhaust; if that which is gained by the sweat of so many millions of men, be torn out of the mouths of their starving wives and children, to foment the vices of those luxurious courts, or reward the ministers of their lusts, the nourishment is not distributed equally to all the parts of the body; the economy of the whole is overthrown, and they who do these things, cannot be the heads, nor parts of the body, but something distinct from and repugnant to it. ’Tis not therefore he who is found in, or advanced to the place of the head, who is truly the head: ’Tis not he who ought, but he who does perform the office of the head, that deserves the name and privileges belonging to the head. If our author therefore will persuade us that any king is head of his people, he must do it by arguments peculiarly relating to him, since those in general are found to be false. If he say that the king as king may direct or correct the people, and that the power of determining all controversies must be referred to him, because they may be mistaken, he must show that the king is infallible; for unless he do so, the wound is not cured. This also must be by some other way, than by saying he is their head; for such powers belong not to the office of the head, and we see that all kings do not deserve that name: Many of them want both understanding and will to perform the functions of the head; and many act directly contrary in the whole course of their government. If any therefore among them have merited the glorious name of heads of nations, it must have been by their personal virtues, by a vigilant care of the good of their people, by an inseparable conjunction of interests with them, by an ardent love to every member of the society, by a moderation of spirit affecting no undue superiority, or assuming any singular advantage which they are not willing to communicate to every part of the political body. He who finds this merit in himself, will scorn all the advantages that can be drawn from misapplied names: He that knows such honor to be peculiarly due to him for being the best of kings, will never glory in that which may be common to him with the worst. Nay, whoever pretends by such general discourses as these of our author, to advance the particular interests of any one king, does either know he is of no merit, and that nothing can be said for him which will not as well agree with the worst of men; or cares not what he says so he may do mischief, and is well enough contented, that he who is set up by such maxims as a publick plague, may fall in the ruin he brings upon the people.
Those who desire to advance the power of the magistrate above the law, would persuade us, that the difficulties and dangers of inquiring into his actions, or opposing his will when employ’d in violence and injustice, are so great, that the remedy is always worse than the disease; and that ’tis better to suffer all the evils that may proceed from his infirmities and vices, than to hazard the consequences of displeasing him. But on the contrary, I think and hope to prove,
To the first; ’Tis most evident that in well-regulated governments these remedies have been found to be easy and safe. The kings of Sparta were not suffer’d in the least to deviate from the rule of the law: And Theopompus one of those kings, in whose time the ephori were created, and the regal power much restrained, doubted not to affirm, that it was by that means become more lasting and more secure. Pausanias had not the name of king, but commanded in the war against Xerxes with more than regal power; nevertheless being grown insolent, he was without any trouble to that state banished, and afterwards put to death. Leonidas father of Cleomenes, was in the like manner banished. The second Agis was most unjustly put to death by the ephori, for he was a brave and a good prince, but there was neither danger nor difficulty in the action. 1 Many of the Roman magistrates, after the expulsion of the kings, seem to have been desirous to extend their power beyond the bounds of the law; and perhaps some others as well as the decemviri, may have designed an absolute tyranny; but the first were restrained, and the others without much difficulty suppressed. Nay, even the kings were so well kept in order, that no man ever pretended to the crown unless he were chosen, nor made any other use of his power than the law permitted, except the last Tarquin, who by his insolence, avarice and cruelty, brought ruin upon himself and his family. I have already mentioned one or two dukes of Venice who were not less ambitious, but their crimes returned upon their own heads, and they perished without any other danger to the state than what had passed before their treasons were discovered. Infinite examples of the like nature may be alleged; and if matters have not at all times, and in all places, succeeded in the same manner, it has been because the same courses were not everywhere taken; for all things do so far follow their causes, that being order’d in the same manner, they will always produce the same effects.
2. To the second; Such a regulation of the magistratical power is not at all grievous to a good magistrate. He who never desires to do anything but what he ought, cannot desire a power of doing what he ought not, nor be troubled to find he cannot do that which he would not do if he could. This inability is also advantageous to those who are evil or unwise; that since they cannot govern themselves, a law may be imposed upon them, lest by following their own irregular will, they bring destruction upon themselves, their families and people, as many have done. If Apollo in the fable had not been too indulgent to Phaethon, in granting his ill-conceiv’d request, the furious youth had not brought a necessity upon Jupiter, either of destroying him, or suffering the world to be destroy’d by him.
Besides, good and wise men know the weight of sovereign power, and misdoubt their own strength. Sacred and human histories furnish us with many examples of those who have feared the lustre of a crown. Men that find in themselves no delight in doing mischief, know not what thoughts may insinuate into their minds, when they are raised too much above their sphere. They who were able to bear adversity, have been precipitated into ruin by prosperity. When the prophet told Hazael the villainies he would commit, he answer’d, Is thy servant a dog, that I should do these things? but yet he did them. 2 I know not where to find an example of a man more excellently qualified than Alexander of Macedon; but he fell under the weight of his own fortune, and grew to exceed those in vice, whom he had conquer’d by his virtue. The nature of man can hardly suffer such violent changes without being disorder’d by them; and everyone ought to enter into a just diffidence of himself, and fear the temptations that have destroy’d so many. If any man be so happily born, so carefully educated, so established in virtue, that no storm can shake him, nor any poison corrupt him, yet he will consider he is mortal; and knowing no more than Solomon, whether his son shall be a wise man or a fool, he will always fear to take upon him a power, which must prove a most pestilent evil both to the person that has it, and to those that are under it, as soon as it shall fall into the hands of one, who either knows not how to use it, or may be easily drawn to abuse it. Supreme magistrates always walk in obscure and slippery places: but when they are advanced so high, that no one is near enough to support, direct or restrain them, their fall is inevitable and mortal. And those nations that have wanted the prudence rightly to balance the powers of their magistrates, have been frequently obliged to have recourse to the most violent remedies, and with much difficulty, danger and blood, to punish the crimes which they might have prevented. On the other side, such as have been more wise in the constitution of their governments, have always had regard to the frailty of human nature, and the corruption reigning in the hearts of men; and being less liberal of the power over their lives and liberties, have reserved to themselves so much as might keep their magistrates within the limits of the law, and oblige them to perform the ends of their institution. And as the law which denounces severe penalties for crimes, is indeed merciful both to ill men, who are by that means deterred from committing them; and to the good, who otherwise would be destroy’d: so those nations that have kept the reins in their hands, have by the same act provided as well for the safety of their princes as for their own. They who know the law is well defended, seldom attempt to subvert it: they are not easily tempted to run into excesses, when such bounds are set, as may not safely be transgressed; and whilst they are by this means render’d more moderate in the exercise of their power, the people is exempted from the odious necessity of suffering all manner of indignities and miseries, or by their destruction to prevent or avenge them.
3. To the third: If these rules have not been well observed in the first constitution, or from the changes of times, corruption of manners, insensible encroachments, or violent usurpations of princes, have been render’d ineffectual, and the people exposed to all the calamities that may be brought upon them by the weakness, vices and malice of the prince, or those who govern him, I confess the remedies are more difficult and dangerous; but even in those cases they must be tried. Nothing can be fear’d that is worse than what is suffer’d, or must in a short time fall upon those who are in this condition. They who are already fallen into all that is odious, shameful and miserable, cannot justly fear. When things are brought to such a pass, the boldest counsels are the most safe; and if they must perish who lie still, and they can but perish who are most active, the choice is easily made. 3 Let the danger be never so great, there is a possibility of safety whilst men have life, hands, arms, and courage to use them; but that people must certainly perish, who tamely suffer themselves to be oppress’d, either by the injustice, cruelty and malice of an ill magistrate, or by those who prevail upon the vices and infirmities of weak princes. ’Tis in vain to say, that this may give occasion to men of raising tumults or civil war; for tho these are evils, yet they are not the greatest of evils. Civil war in Machiavelli’s account is a disease, but tyranny is the death of a state. Gentle ways are first to be used, and ’tis best if the work can be done by them; but it must not be left undone if they fail. ’Tis good to use supplications, advices and remonstrances; but those who have no regard to justice, and will not hearken to counsel, must be constrained. ’Tis folly to deal otherwise with a man who will not be guided by reason, and a magistrate who despises the law: or rather, to think him a man, who rejects the essential principle of a man; or to account him a magistrate who overthrows the law by which he is a magistrate. This is the last result; but those nations must come to it, which cannot otherwise be preserved. Nero’s madness was not to be cured, nor the mischievous effects of it any otherwise to be suppressed than by his death. He who had spared such a monster when it was in his power to remove him, had brought destruction upon the whole empire; and by a foolish clemency made himself the author of his future villainies. This would have been yet more clear, if the world had then been in such a temper as to be capable of an entire liberty. But the ancient foundations had been overthrown, and nothing better could be built upon the new, than something that might in part resist that torrent of iniquity which had overflow’d the best part of the world, and give mankind a little time to breathe under a less barbarous master. Yet all the best men did join in the work that was then to be done, tho they knew it would prove but imperfect. The sacred history is not without examples of this kind: When Ahab had subverted the law, set up false witnesses and corrupt judges to destroy the innocent, killed the prophets, and established idolatry, his house must then be cut off, and his blood be licked up by dogs. When matters are brought to this pass, the decision is easy. The question is only, whether the punishment of crimes shall fall upon one or a few persons who are guilty of them, or upon a whole nation that is innocent. If the father may not die for the son, nor the son for the father, but everyone must bear the penalty of his own crimes, it would be most absurd to punish the people for the guilt of princes. When the earl of Morton was sent ambassador to Queen Elizabeth by the estates of Scotland, to justify their proceedings against Mary their queen, whom they had obliged to renounce the government; he alleged amongst other things the murder of her husband plainly proved against her; asserted the ancient right and custom of that kingdom, of examining the actions of their kings; 4 by which means, he said, many had been punished with death, imprisonment and exile; 5 confirmed their actions by the examples of other nations; and upon the whole matter concluded, that if she was still permitted to live, it was not on account of her innocence, or any exemption from the penalties of the law, but from the mercy and clemency of the people, who contenting themselves with a resignation of her right and power to her son, had spared her. This discourse, which is set down at large by the historian cited on the margin, being of such strength in itself as never to have been any otherwise answered than by railing, and no way disapproved by Queen Elizabeth or her council to whom it was made, either upon a general account of the pretensions of princes to be exempted from the penalties of the law, or any pretext that they had particularly misapplied them in relation to their queen, I may justly say, that when nations fall under such princes as are either utterly uncapable of making a right use of their power, or do maliciously abuse that authority with which they are entrusted, those nations stand obliged, by the duty they owe to themselves and their posterity, to use the best of their endeavours to remove the evil, whatever danger or difficulties they may meet with in the performance. Pontius the Samnite said as truly as bravely to his countrymen, That those arms were just and pious that were necessary, and necessary when there was no hope of safety by any other way. 6 This is the voice of mankind, and is dislik’d only by those princes, who fear the deserved punishments may fall upon them; or by their servants and flatterers, who being for the most part the authors of their crimes, think they shall be involved in their ruin.