’Tis commonly said, that no man ought to be the judge of his own case; and our author lays much weight upon it as a fundamental maxim, tho according to his ordinary inconstancy he overthrows it in the case of kings, where it ought to take place if in any; for it often falls out that no men are less capable of forming a right judgment than they. Their passions and interests are most powerful to disturb or pervert them. No men are so liable to be diverted from justice by the flatteries of corrupt servants. They never act as kings, except for those by whom and for whom they are created; and acting for others, the account of their actions cannot depend upon their own will. Nevertheless I am not afraid to say, that naturally and properly a man is the judge of his own concernments. No one is or can be deprived of this privilege, unless by his own consent, and for the good of that society into which he enters. This right therefore must necessarily belong to every man in all cases, except only such as relate to the good of the community, for whose sake he has divested himself of it. If I find myself afflicted with hunger, thirst, weariness, cold, heat, or sickness, ’tis a folly to tell me, I ought not to seek meat, drink, rest, shelter, refreshment, or physick, because I must not be the judge of my own case. The like may be said in relation to my house, land, or estate; I may do what I please with them, if I bring no damage upon others. But I must not set fire to my house, by which my neighbour’s house may be burnt. I may not erect forts upon my own lands, or deliver them to a foreign enemy, who may by that means infest my country. I may not cut the banks of the sea, or those of a river, lest my neighbour’s ground be overflown, because the society into which I am incorporated, would by such means receive prejudice. My land is not simply my own, but upon condition that I shall not thereby bring damage upon the publick, by which I am protected in the peaceable enjoyment and innocent use of what I possess. But this society leaves me a liberty to take servants, and put them away at my pleasure. No man is to direct me, of what quality or number they shall be, or can tell me whether I am well or ill served by them. Nay, the state takes no other cognizance of what passes between me and them, than to oblige me to perform the contracts I make, and not to do that to them which the law forbids: that is to say, the power to which I have submitted myself, exercises that jurisdiction over me, which was established by my consent, and under which I enjoy all the benefits of life, which are of more advantage to me than my liberty could have been, if I had retained it wholly in myself. The nature also and measure of this submission must be determined by the reasons that induced me to it. The society in which I live cannot subsist unless by rule; the equality in which men are born is so perfect, that no man will suffer his natural liberty to be abridged, except others do the like: I cannot reasonably expect to be defended from wrong, unless I oblige myself to do none; or to suffer the punishment prescribed by the law, if I perform not my engagement. But without prejudice to the society into which I enter, I may and do retain to myself the liberty of doing what I please in all things relating peculiarly to myself, or in which I am to seek my own convenience.
Now if a private man is not subject to the judgment of any other, than those to whom he submits himself for his own safety and convenience; and notwithstanding that submission, still retains to himself the right of ordering according to his own will all things merely relating to himself, and of doing what he pleases in that which he does for his own sake; the same right must more certainly belong to whole nations. When a controversy happens between Caius and Seius in a matter of right, neither of them may determine the cause, but it must be referred to a judge superior to both; not because ’tis not fit that a man should be judge of his own case, but because they have both an equal right, and neither of them owes any subjection to the other. But if there be a contest between me and my servant concerning my service, I only am to decide it: He must serve me in my own way, or be gone if I think fit, tho he serve me never so well; and I do him no wrong in putting him away, if either I intend to keep no servant, or find that another will please me better. I cannot therefore stand in need of a judge, unless the contest be with one who lives upon an equal foot with me. No man can be my judge, unless he be my superior; and he cannot be my superior, who is not so by my consent, nor to any other purpose than I consent to. This cannot be the case of a nation, which can have no equal within itself. Controversies may arise with other nations, the decision of which may be left to judges chosen by mutual agreement; but this relates not to our question. A nation, and most especially one that is powerful, cannot recede from its own right, as a private man from the knowledge of his own weakness and inability to defend himself, must come under the protection of a greater power than his own. The strength of a nation is not in the magistrate, but the strength of the magistrate is in the nation. The wisdom, industry and valour of a prince may add to the glory and greatness of a nation, but the foundation and substance will always be in itself. If the magistrate and people were upon equal terms, as Caius and Seius, receiving equal and mutual advantages from each other, no man could be judge of their differences, but such as they should set up for that end. This has been done by many nations. The ancient Germans referred the decision of the most difficult matters to their priests: the Gauls and Britains to the Druids: the Mohammedans for some ages to the caliphs of Babylon: the Saxons in England, when they had embraced the Christian religion, to their clergy. Whilst all Europe lay under the popish superstition, the decision of such matters was frequently assumed by the pope; men often submitted to his judgment, and the princes that resisted were for the most part excommunicated, deposed and destroyed. All this was done for the same reasons. These men were accounted holy and inspired, and the sentence pronounced by them was usually reverenced as the judgment of God, who was thought to direct them; and all those who refused to submit, were esteemed execrable. But no man, or number of men, as I think, at the institution of a magistrate did ever say, if any difference happen between you or your successors and us, it shall be determined by yourself or by them, whether they be men, women, children, mad, foolish, or vicious. Nay if any such thing had been, the folly, turpitude and madness of such a sanction or stipulation must necessarily have destroy’d it. But if no such thing was ever known, or could have no effect if it had been in any place, ’tis most absurd to impose it upon all. The people therefore cannot be deprived of their natural rights upon a frivolous pretence to that which never was and never can be. They who create magistracies, and give to them such name, form and power as they think fit, do only know, whether the end for which they were created, be performed or not. They who give a being to the power which had none, can only judge whether it be employ’d to their welfare, or turned to their ruin. They do not set up one or a few men, that they and their posterity may live in splendor and greatness, but that justice may be administered, virtue established, and provision made for the publick safety. No wise man will think this can be done, if those who set themselves to overthrow the law, are to be their own judges. If Caligula, Nero, Vitellius, Domitian, or Heliogabalus, had been subject to no other judgment, they would have compleated the destruction of the empire. If the disputes between Durstus, Evenus the third, Dardannus, and other kings of Scotland, with the nobility and people, might have been determined by themselves, they had escaped the punishments they suffer’d, and ruined the nation as they designed. Other methods were taken; they perished by their madness; better princes were brought into their places, and their successors were by their example admonished to avoid the ways that had proved fatal to them. If Edward the second of England, with Gaveston and the Spencers, Richard the second with Tresilian and Vere, had been permitted to be the judges of their own cases, they who had murdered the best of the nobility would have pursued their designs to the destruction of such as remained, the enslaving of the nation, the subversion of the constitution, and the establishment of a mere tyranny in the place of a mixed monarchy. But our ancestors took better measures: They who had felt the smart of the vices and follies of their princes, knew what remedies were most fit to be applied, as well as the best time of applying them. They found the effects of extreme corruption in government to be so desperately pernicious, that nations must necessarily perish, unless it be corrected, and the state reduced to its first principle, or altered. Which being the case, it was as easy for them to judge whether the governor who had introduced that corruption should be brought to order, removed if he would not be reclaimed, or whether he should be suffer’d to ruin them and their posterity, as it is for me to judge, whether I should put away my servant, if I knew he intended to poison or murder me, and had a certain facility of accomplishing his design; or whether I should continue him in my service till he had performed it. Nay the matter is so much the more plain on the side of the nation, as the disproportion of merit between a whole people, and one or a few men entrusted with the power of governing them, is greater than between a private man and his servant. This is so fully confirmed by the general consent of mankind, that we know no government that has not frequently either been altered in form, or reduced to its original purity, by changing the families or persons who abused the power with which they had been entrusted. Those who have wanted wisdom and virtue rightly and seasonably to perform this, have been soon destroy’d; like the Goths in Spain, who by omitting to curb the fury of Witiza and Rodrigo in time, became a prey to the Moors. 1 Their kingdom by this means destroy’d was never restored, and the remainder of that nation joining with the Spaniards whom they had kept in subjection for three or four ages, could not in less than eight hundred years, expel those enemies they might have kept out, only by removing two base and vicious kings. Such nations as have been so corrupted, that when they have applied themselves to seek remedies to the evils they suffered by wicked magistrates, could not fall upon such as were proportionable to the disease, have only vented their passions in destroying the immediate instruments of their oppression, or for a while delay’d their utter ruin. But the root still remaining, it soon produced the same poisonous fruit, and either quite destroy’d, or made them languish in perpetual misery. The Roman empire was the most eminent example of the first; many of the monsters that had tyrannized over them were killed, but the greatest advantage gained by their death, was a respite from ruin; and the government which ought to have been established by good laws, depending only upon the virtue of one man, his life proved to be no more than a lucid interval, and at his death they relapsed into the depth of infamy and misery: and in this condition they continued till that empire was totally subverted.
All the kingdoms of the Arabians, Medes, Persians, Moors, and others of the East are of the other sort. Common sense instructs them, that barbarous pride, cruelty and madness grown to extremity, cannot be borne: but they have no other way than to kill the tyrant, and to do the like to his successor if he fall into the same crimes. Wanting that wisdom and valour which is requir’d for the institution of a good government, they languish in perpetual slavery, and propose to themselves nothing better than to live under a gentle master, which is but a precarious life, and little to be valued by men of bravery and spirit. But those nations that are more generous, who set a higher value upon liberty, and better understand the ways of preserving it, think it a small matter to destroy a tyrant, unless they can also destroy the tyranny. They endeavour to do the work thoroughly, either by changing the government entirely, or reforming it according to the first institution, and making such good laws as may preserve its integrity when reformed. This has been so frequent in all the nations (both ancient and modern) with whose actions we are best acquainted, as appears by the foregoing examples, and many others that might be alleged, if the case were not clear, that there is not one of them which will not furnish us with many instances; and no one magistracy now in being which does not owe its original to some judgment of this nature. So that they must either derive their right from such actions, or confess they have none at all, and leave the nations to their original liberty of setting up those magistracies which best please themselves, without any restriction or obligation to regard one person or family more than another.
Our author, with the rest of the vulgar, seems to have been led into gross errors by the form of writs summoning persons to appear before the king. 1 The common style used in the trial of delinquents; the name of the king’s witnesses given to those who accuse them; the verdicts brought in by juries, coram domino rege, 2 and the prosecution made in the king’s name, seem to have caused this. And they who understand not these phrases, render the law a heap of the most gross absurdities, and the king an enemy to every one of his subjects, when he ought to be a father to them all; since without any particular consideration or examination of what any witness deposes in a court of justice, tending to the death, confiscation, or other punishment of any man, he is called the king’s witness whether he speak the truth or a lie, and on that account favour’d. ’Tis not necessary to allege many instances in a case that is so plain; but it may not be amiss to insert two or three of the most important reasons to prove my assertion.
1. If the law did intend that he or she who wears the crown, should in his or her person judge all causes, and determine the most difficult questions, it must like our author presume that they will always be of profound wisdom to comprehend all of them, and of perfect integrity always to act according to their understanding. Which is no less than to lay the foundation of the government upon a thing merely contingent, that either never was, or very often fails, as is too much verified by experience, and the histories of all nations; or else to refer the decision of all to those who through the infirmities of age, sex, or person, are often uncapable of judging the least, or subject to such passions and vices as would divert them from justice tho they did understand it; both which seem to be almost equally preposterous.
2. The law must also presume that the prince is always present in all the places where his name is used. The king of France is (as I have said already) esteemed to be present on the seat of justice 3 in all the parliaments and sovereign courts of the kingdom: and if his corporeal presence were by that phrase to be understood, he must be in all those distinct and far distant places at the same time; which absurdity can hardly be parallel’d, unless by the popish opinion of transubstantiation. But indeed they are so far from being guilty of such monstrous absurdity, that he cannot in person be present at any trial, and no man can be judged if he be. This was plainly asserted to Lewis the 13th (who would have been at the trial of the duke of Candale) 4 by the president de Bellievre, who told him that as he could judge no man himself, so they could not judge any if he were present: upon which he retired.
3. The laws of most kingdoms giving to kings the confiscation of delinquents’ estates, if they in their own persons might give judgment upon them, they would be constituted both judges and parties; which besides the foremention’d incapacities to which princes are as much subject as other men, would tempt them by their own personal interest to subvert all manner of justice.
This therefore not being the meaning of the law, we are to inquire what it is; and the thing is so plain that we cannot mistake, unless we do it wilfully. Some name must be used in all manner of transactions, and in matters of publick concernment none can be so fit as that of the principal magistrate. Thus are leagues made, not only with kings and emperors, but with the dukes of Venice and Genoa, the avoyer and senate of a canton in Switzerland, the burgermaster of an imperial town in Germany, and the states-general of the United Provinces. But no man thinking, I presume, these leagues would be of any value, if they could only oblige the persons whose names are used, ’tis plain that they do not stipulate only for themselves; and that their stipulations would be of no value if they were merely personal. And nothing can more certainly prove they are not so, than that we certainly know, these dukes, avoyers and burgermasters can do nothing of themselves. The power of the states-general of the United Provinces is limited to the points mentioned in the Act of Union made at Utrecht. The empire is not obliged by any stipulation made by the emperor without their consent. Nothing is more common than for one king making a league with another, to exact a confirmation of their agreement, by the parliaments, diets or general estates; because, says Grotius, a prince does not stipulate for himself, but for the people under his government; and a king deprived of his kingdom, loses the right of sending an ambassador. 5 The powers of Europe shewed themselves to be of this opinion in the case of Portugal. When Philip the second had gained the possession, they treated with him concerning the affairs relating to that kingdom: Few regarded Don Antonio; and no man considered the dukes of Savoy, Parma or Braganza, who perhaps had the most plausible titles: But when his grandson Philip the fourth had lost that kingdom, and the people had set up the duke of Braganza, they all treated with him as king. And the English court, tho then in amity with Spain, and not a little influenced by a Spanish faction, gave example to others, by treating with him and not with Spain touching matters relating to that state. Nay, I have been informed by those who well understood the affairs of that time, that the Lord Cottington advising the late king 6 not to receive any persons sent from the duke of Braganza, rebel to his ally the king of Spain, in the quality of ambassadors; the king answered, that he must look upon that person to be king of Portugal, who was acknowledged by the nation. And I am mistaken if his majesty now reigning did not find all the princes and states of the world to be of the same mind, when he was out of his kingdom, and could oblige no man but himself and a few followers by any treaty he could make.
For the same reason the names of kings are used in treaties, when they are either children, or otherwise uncapable of knowing what alliances are fit to be made or rejected; and yet such treaties do equally oblige them, their successors and people, as if they were of mature age and fit for government. No man therefore ought to think it strange, if the king’s name be used in domestick affairs, of which he neither ought nor can take any cognizance. In these cases he is perpetually a minor: He must suffer the law to take its due course; and the judges, tho nominated by him, are obliged by oath not to have any regard to his letters or personal commands. If a man be sued, he must appear; and a delinquent is to be tried coram rege, but no otherwise than secundum legem terrae, according to the law of the land, not his personal will or opinion. And the judgments given must be executed, whether they please him or not, it being always understood that he can speak no otherwise than the law speaks, and is always present as far as the law requires. For this reason a noble lord who was irregularly detain’d in prison in 1681, being by habeas corpus brought to the bar of the king’s bench, where he sued to be releas’d upon bail; and an ignorant judge telling him he must apply himself to the king, he replied, that he came thither for that end; that the king might eat, drink, or sleep where he pleased, but when he render’d justice he was always in that place. The king that renders justice is indeed always there: He never sleeps; he is subject to no infirmity; he never dies unless the nation be extinguished, or so dissipated as to have no government. No nation that has a sovereign power within itself, does ever want this king. He was in Athens and Rome, as well as at Babylon and Susa; and is as properly said to be now in Venice, Switzerland or Holland, as in France, Morocco or Turkey. This is he to whom we all owe a simple and unconditional obedience. This is he who never does any wrong: ’Tis before him we appear, when we demand justice, or render an account of our actions. All juries give their verdict in his sight: They are his commands that the judges are bound and sworn to obey, when they are not at all to consider such as they receive from the person that wears the crown. ’Twas for treason against him that Tresilian and others like to him in several ages were hanged. They gratified the lusts of the visible powers, but the invisible king would not be mock’d. He caused justice to be executed upon Empson and Dudley. He was injured when the perjur’d wretches who gave that accursed judgment in the case of ship money, were suffered to escape the like punishment by means of the ensuing troubles which they had chiefly raised. And I leave it to those who are concerned, to consider how many in our days may expect vengeance for the like crimes.
I should here conclude this point, if the power of granting a noli prosequi: cesset processus, 7 and pardons, which are said to be annexed to the person of the king, were not taken for a proof that all proceedings at law depend upon his will. But whoever would from hence draw a general conclusion, must first prove his proposition to be universally true. If it be wholly false, no true deduction can be made; and if it be true only in some cases, ’tis absurd to draw from thence a general conclusion; and to erect a vast fabrick upon a narrow foundation is impossible. As to the general proposition I utterly deny it. The king cannot stop any suit that I begin in my own name, or invalidate any judgment I obtain upon it: He cannot release a debt of ten shillings due to me, nor a sentence for the like sum given upon an action of battery, assault, trespass, publick nuisance, or the like. He cannot pardon a man condemned upon an appeal, nor hinder the person injured from appealing. His power therefore is not universal: if it be not universal, it cannot be inherent, but conferred upon him, or entrusted by a superior power that limits it.
These limits are fixed by the law, the law therefore is above him. His proceedings must be regulated by the law, and not the law by his will. Besides, the extent of those limits can only be known by the intention of the law that sets them; and are so visible, that none but such as are wilfully blind can mistake. It cannot be imagined that the law, which does not give a power to the king of pardoning a man that breaks my hedge, can intend he should have power to pardon one who kills my father, breaks my house, robs me of my goods, abuses my children and servants, wounds me, and brings me in danger of my life. Whatever power he has in such cases, is founded upon a presumption, that he who has sworn not to deny or delay justice to any man, will not break his oath to interrupt it. And farther, as he does nothing but what he may rightly do, cum magnatum sapientum consilio; 8 and that ’tis supposed, they will never advise him to do anything, but what ought to be done, in order to attain the great ends of the law, justice, and the publick safety; nevertheless lest this should not be sufficient to keep things in their due order, or that the king should forget his oath, not to delay or deny justice to any man, his counsellors are exposed to the severest punishments, if they advise him to do anything contrary to it, and the law upon which it is grounded. So that the utmost advantage the king can pretend to in this case, is no more than that of the Norman, who said he had gained his cause, because it depended upon a point that was to be decided by his oath; that is to say, if he will betray the trust reposed in him, and perjure himself, he may sometimes exempt a villain from the punishment he deserves, and take the guilt upon himself. I say sometimes; for appeals may be brought in some cases, and the waterman who had been pardoned by his majesty in the year 1680, for a murder he had committed, was condemned and hanged at the assizes upon an appeal. Nay, in cases of treason, which some men think relate most particularly to the person of the king, he cannot always do it. Gaveston, the two Spencers, Tresilian, Empson, Dudley, and others, have been executed as traitors for things done by the king’s command; and ’tis not doubted they would have been saved, if the king’s power had extended so far. I might add the cases of the earls of Strafford and Danby; for tho the king signed a warrant for the execution of the first, no man doubts he would have saved him, if it had been in his power. The other continues in prison notwithstanding his pardon; and for anything I know he may continue where he is, or come out in a way that will not be to his satisfaction unless he be found innocent, or something fall out more to his advantage than his majesty’s approbation of what he has done. If therefore the king cannot interpose his authority to hinder the course of the law in contests between private men, nor remit the debts adjudged to be due, or the damages given to the persons aggriev’d, he can in his own person have no other power in things of this nature, than in some degree to mitigate the vindictive power of the law; and this also is to be exercised no other way than as he is entrusted. But if he acts even in this capacity by a delegated power, and in few cases, he must act according to the ends for which he is so entrusted, as the same law says, cum magnatum sapientum consilio, and is not therein to pursue his own will and interests: If his oath farther oblige him not to do it; and his ministers are liable to punishment, if they advise him otherwise: If in matters of appeal he have no power; and if his pardons have been of no value, when contrary to his oath he has abused that with which he is entrusted, to the patronizing of crimes, and exempting such delinquents from punishment, as could not be pardoned without prejudice to the publick, I may justly conclude, that the king, before whom every man is bound to appear, who does perpetually and impartially distribute justice to the nation, is not the man or woman that wears the crown; and that he or she cannot determine those matters, which by the law are referr’d to the king. Whether therefore such matters are ordinary or extraordinary, the decision is and ought to be placed where there is most wisdom and stability, and where passion and private interest does least prevail to the obstruction of justice. This is the only way to obviate that confusion and mischief, which our author thinks it would introduce. In cases of the first sort, this is done in England by judges and juries: In the other by the parliament, which being the representative body of the people, and the collected wisdom of the nation, is least subject to error, most exempted from passion, and most free from corruption, their own good both publick and private depending upon the rectitude of their sanctions. They cannot do anything that is ill without damage to themselves and their posterity; which being all that can be done by human understanding, our lives, liberties and properties are by our laws directed to depend upon them.
Our author according to his usual method and integrity, lays great weight upon proclamations, as the significations of the king’s pleasure, which in his opinion is our only law. 1 But neither law nor reason openly directing, nor by consequences insinuating, that such a power should be put into an uncertain or suspected hand, we may safely deny them to be laws, or in any sense to have the effect of laws. Nay, they cannot be so much as significations of his will; for as he is king, he can have no will but as the law directs. If he depart from the law, he is no longer king, and his will is nothing to us. Proclamations, at most, are but temporary, by the advice of council, in pursuance of the law. If they be not so, the subject is no way obliged to obey them, and the counsellors are to be punished for them. These laws are either immemorial customs, or statutes. The first have their beginning and continuance from the universal consent of the nation. The latter receive their authority and force of laws from parliaments, as is frequently expressed in the preambles. These are under God the best defence of our lives, liberties, and estates: they proceed not from the blind, corrupt, and fluctuating humor of a man, but from the mature deliberation of the choicest persons of the nation, and such as have the greatest interest in it. Our ancestors have always relied upon these laws; and ’tis to be hoped we shall not be so abandoned by God, so deprived of courage and common sense, to suffer ourselves to be cheated of the inheritance which they have so frequently, so bravely, and so constantly defended. Tho experience has too well taught us, that parliaments may have their failings, and that the vices, which are industriously spread amongst them, may be too prevalent; yet they are the best helps we have, and we may much more reasonably depend upon them, than upon those who propagate that corruption among them for which only they can deserve to be suspected. We hope they will take care of our concernments, since they are as other men so soon as a session is ended, and can do nothing to our prejudice that will not equally affect them and their posterity; besides the guilt of betraying their country, which can never be washed off. If some should prove false to their trust, ’tis probable that others would continue in their integrity: Or if the base arts, which are usually practised by those who endeavour to delude, corrupt, enslave and ruin nations, should happen to prevail upon the youngest and weakest it may be reasonably hoped, that the wisest will see the snares, and instruct their companions to avoid them. But if all things were so put into the hands of one man, that his proclamations were to be esteemed laws, the nation would be exposed to ruin, as soon as it should chance to fall into an ill hand. ’Tis in vain to say we have a good king, who will not make an ill use of his power; for even the best are subject to be deceived by flatterers, and crown’d heads are almost ever encompassed by them. The principal art of a courtier is to observe his master’s passions, and to attack him on that side where he seems to be most weak. It would be a strange thing to find a man impregnable in every part; and if he be not, ’tis impossible he should resist all the attempts that are made upon him. If his judgment come to be prepossess’d, he and all that depend on him are lost. Contradictions, tho never so just, are then unsafe, and no man will venture upon them, but he who dares sacrifice himself for the publick good. The nature of man is frail, and stands in need of assistance. Virtuous actions that are profitable to a commonwealth, ought to be made, as far as it is possible, safe, easy, and advantageous: and ’tis the utmost imprudence to tempt men to be enemies to the publick, by making the most pernicious actions to be the means of obtaining honour and favour, whilst no man can serve his country, but with the ruin of himself and his family.
However in this case the question is not concerning a person: the same counsels are to be follow’d when Moses or Samuel is in the throne, as if Caligula had invaded it. Laws ought to aim at perpetuity, but the virtues of a man die with him, and very often before him. Those who have deserved the highest praises for wisdom and integrity, have frequently left the honors they enjoyed to foolish and vicious children. If virtue may in any respect be said to outlive the person, it can only be when good men frame such laws and constitutions as by favouring it preserve themselves. This has never been done otherwise, than by balancing the powers in such a manner, that the corruption which one or a few men might fall into, should not be suffer’d to spread the contagion to the ruin of the whole. The long continuance of Lycurgus his laws is to be attributed to this: They restrained the lusts of kings, and reduced those to order who adventured to transgress them: Whereas the whole fabrick must have fallen to the ground in a short time, if the first that had a fancy to be absolute, had been able to effect his design. This has been the fate of all governments that were made to depend upon the virtue of a man, which never continues long in any family, and when that fails all is lost. The nations therefore that are so happy to have good kings, ought to make a right use of them, by establishing the good that may outlast their lives. Those of them that are good, will readily join in this work, and take care that their successors may be obliged in doing the like, to be equally beneficial to their own families, and the people they govern. If the rulers of nations be restrained, not only the people is by that means secured from the mischiefs of their vices and follies, but they themselves are preserved from the greatest temptations to ill, and the terrible effects of the vengeance that frequently ensues upon it. An unlimited prince might be justly compared to a weak ship exposed to a violent storm, with a vast sail and no rudder. We have an eminent example of this in the book of Esther. 2 A wicked villain having filled the ears of a foolish king with false stories of the Jews, he issues out a proclamation for their utter extirpation; and not long after being informed of the truth, he gave them leave by another proclamation to kill whom they pleased, which they executed upon seventy thousand men. The books of Ezra, Nehemiah and Daniel, manifestly discover the like fluctuation in all the counsels of Nebuchadnezzar, Cyrus, Darius, and Artaxerxes. When good men had credit with them, they favour’d the Israelites; sent them back to their own country; restored the sacred vessels that had been taken away; gave them all things necessary for the rebuilding of the city, and advanced the chief of them to the highest employments. But if they fell into ill hands, three just men must be thrown into the burning furnace for refusing to worship an idol; Daniel must be cast to the lions; the holy city esteemed rebellious, and those who endeavoured to rebuild it, enemies to kings. Such was the state of things, when their proclamations passed for laws, and numbers of flattering slaves were ready to execute their commands, without examining whether they were just or unjust, good or bad. The life and death of the best men, together with the very being of nations, was exposed to chance, and they were either preserved or destroyed according to the humor of that man who spoke last to the king, or happened to have credit with him. If a frantick fancy come into the head of a drunken whore, Persepolis must be burnt, and the hand of Alexander is ready to execute her will. 3 If a dancing wench please Herod, the most venerable of all human heads must be offered in a dish for a sacrifice to the rage of her impure mother. 4 The nature of man is so frail, that wheresoever the word of a single person has had the force of a law, the innumerable extravagances and mischiefs it has produced have been so notorious, that all nations who are not stupid, slavish and brutish, have always abominated it, and made it their principal care to find out remedies against it, by so dividing and balancing the powers of their government, that one or a few men might not be able to oppress and destroy those they ought to preserve and protect. This has always been as grateful to the best and wisest princes, as necessary to the weakest and worst, as I have proved already by the examples of Theopompus, Moses, and many others. These considerations have given beginning, growth and continuance to all the mixed governments that have been in the world; and I may justly say there never was a good one that was not mixed. If other proofs of their rectitude were wanting, our author’s hatred would be enough to justify them. He is so bitter an enemy to mankind, as to be displeased with nothing but that which tends to their good, and so perverse in his judgment, that we have reason to believe that to be good which he most abhors. One would think he had taken the model of the government he proposes, from the monstrous tyranny of Ceylon an island in the East-Indies, where the king knows no other law than his own will. He kills, tears in pieces, impales, or throws to his elephants whomsoever he pleases: No man has anything that he can call his own: He seldom fails to destroy those who have been employ’d in his domestick service, or publick offices; and few obtain the favour of being put to death and thrown to the dogs without torments. His subjects approach him no otherwise, than on their knees, licking the dust, and dare assume to themselves no other name than that of dogs, or limbs of dogs. This is a true pattern of Filmer’s patriarchical monarch. His majesty, as I suppose, is sufficiently exalted; for he does whatever he pleases. The exercise of his power is as gentle as can reasonably be expected from one who has all by the unquestionable right of usurpation; and knows the people will no longer suffer him, and the villains he hires to be the instruments of his cruelty, than they can be kept in such ignorance, weakness and baseness, as neither to know how to provide for themselves, or dare to resist him. We ought to esteem ourselves happy, if the like could be established among us; and are much obliged to our author for so kindly proposing an expedient that might terminate all our disputes. Let proclamations obtain the power of laws, and the business is done. They may be so ingeniously contrived, that the ancient laws, which we and our fathers have highly valued, shall be abolished, or made a snare to all those that dare remember they are Englishmen, and are guilty of the unpardonable crime of loving their country, or have the courage, conduct, and reputation requir’d to defend it. This is the sum of Filmer’s philosophy, and this is the legacy he has left to testify his affection to the nation; which having for a long time lain unregarded, has been lately brought into the light again, as an introduction of a popish successor, 5 who is to be established, as we ought to believe, for the security of the Protestant religion, and our English liberties. Both will undoubtedly flourish under a prince who is made to believe the kingdom is his patrimony; that his will is a law, and that he has a power which none may resist. If any man doubt whether he will make a good use of it, he may only examine the histories of what others in the same circumstances have done in all places where they have had power. The principles of that religion are so full of meekness and charity; the popes have always shew’d themselves so gentle towards those who would not submit to their authority; the Jesuits who may be accounted the soul that gives life to the whole body of that faction, are so well natur’d, faithful and exact in their morals; so full of innocence, justice and truth, that no violence is to be fear’d from such as are govern’d by them. The fatherly care shew’d to the Protestants of France, by the five last kings of the house of Valois; the mercy of Philip the second of Spain to his pagan subjects in the West-Indies, and the more hated Protestants in the Netherlands; the moderation of the dukes of Savoy towards the Vaudois in the marquisat of Saluzzo and the valleys of Piedmont; the gentleness and faith of the two Marys queens of England and Scotland; the kindness of the papists to the Protestants of Ireland in the year 1641; with what we have reason to believe they did and do still intend, if they can accomplish the ends of their conspiracy; In a word, the sweetness and apostolical meekness of the Inquisition, may sufficiently convince us that nothing is to be feared where that principle reigns. We may suffer the word of such a prince to be a law, and the people to be made to believe it ought to be so, when he is expected. Tho we should waive the bill of exclusion, and not only admit him to reign as other kings have done, but resign the whole power into his hands, it would neither bring inconvenience or danger on the present king. He can with patience expect that nature should take her course, and would neither anticipate nor secure his entrance into the possession of the power, by taking one day from the life of his brother. Tho the papists know that like a true son of their church, he would prefer the advancement of their religion before all other considerations; and that one stab with a dagger, or a dose of poison, would put all under his feet, not one man would be found among them to give it. The assassins were Mahometans, not pupils of the honest Jesuits, nor ever employ’d by them. These things being certain, all our concernments would be secure, if instead of the foolish statutes and antiquated customs, on which our ancestors and we have hitherto doted, we may be troubled with no law but the king’s will, and a proclamation may be taken for a sufficient declaration of it. We shall by this means be delivered from that liberty with a mischief, 6 in which our mistaken nation seems so much to delight. This phrase is so new, and so peculiar to our author, that it deserves to be written upon his tomb. We have heard of tyranny with a mischief, slavery and bondage with a mischief; and they have been denounced by God against wicked and perverse nations, as mischiefs comprehending all that is most to be abhorr’d and dreaded in the world. But Filmer informs us that liberty, which all wise and good men have in all ages esteemed to be the most valuable and glorious privilege of mankind, is a mischief. If he deserve credit, Moses, Joshua, Gideon, Samson, and Samuel, with others like them, were enemies to their country, in depriving the people of the advantages they enjoy’d under the paternal care of Pharaoh, Adonibezek, Eglon, Jabin, and other kings of the neighbouring nations, and restoring them to that liberty with a mischief which he had promised to them. The Israelites were happy under the power of tyrants, whose proclamations were laws; and they ought to have been thankful to God for that condition, and not for the deliverances he wrought by the hands of his servants. Subjection to the will of a man is happiness, liberty is a mischief. But this is so abominably wicked and detestable, that it can deserve no answer.
How full soever the power of any person or people may be, he or they are obliged to give only so much to their delegates, as seems convenient to themselves, or conducing to the ends they desire to attain; but the delegate can have none except what is conferred upon him by his principal. If therefore the knights, citizens and burgesses sent by the people of England to serve in parliament have a power, it must be more perfectly and fully in those that send them. But (as was proved in the last section) proclamations, and other significations of the king’s pleasure, are not laws to us. They are to be regulated by the law, not the law by them. They are to be considered only so far as they are conformable to the law from which they receive all the strength that is in them, and can confer none upon it. We know no laws but our own statutes, and those immemorial customs established by the consent of the nation; which may be, and often are changed by us. The legislative power therefore that is exercised by the parliament, cannot be conferred by the writ of summons, but must be essentially and radically in the people, from whom their delegates and representatives have all that they have. But, says our author, They must only chuse, and trust those whom they chuse, to do what they list; and that is as much liberty as many of us deserve for our irregular elections of burgesses. 1 This is ingeniously concluded: I take what servant I please, and when I have taken him I must suffer him to do what he pleases. But from whence should this necessity arise? Why may not I take one to be my groom, another to be my cook, and keep them both to the offices for which I took them? What law does herein restrain my right? And if I am free in my private capacity to regulate my particular affairs according to my own discretion, and to allot to each servant his proper work, why have not I with my associates the freemen of England the like liberty of directing and limiting the powers of the servants we employ in our publick affairs? Our author gives us reasons proportionable to his judgment: This were liberty with a mischief; and that of chusing only is as much as many of us deserve. I have already proved, that as far as our histories reach, we have had no princes or magistrates, but such as we have made, and they have had no other power than what we have conferred upon them. They cannot be the judges of our merit, who have no power but what we gave them, through an opinion they did or might deserve it. They may distribute in parcels to particulars that with which they are entrusted in the gross. But ’tis impossible that the publick should depend absolutely upon those who are nothing above other men, except what they are made to be, for, and by the publick. The restrictions therefore of the people’s liberty must be from themselves, or there can be none.
Nevertheless I believe, that the powers of every county, city and borough of England, are regulated by the general law to which they have all consented, and by which they are all made members of one political body. This obliges them to proceed with their delegates in a manner different from that which is used in the United Netherlands, or in Switzerland. Amongst these every province, city or canton making a distinct body independent from any other, and exercising the sovereign power within itself, looks upon the rest as allies, to whom they are bound only by such acts as they themselves have made; and when any new thing not comprehended in them happens to arise, they oblige their delegates to give them an account of it, and retain the power of determining those matters in themselves. ’Tis not so amongst us: Every county does not make a distinct body, having in itself a sovereign power, but is a member of that great body which comprehends the whole nation. ’Tis not therefore for Kent or Sussex, Lewis or Maidstone, but for the whole nation, that the members chosen in those places are sent to serve in parliament: and tho it be fit for them as friends and neighbours (so far as may be) to hearken to the opinions of the electors for the information of their judgments, and to the end that what they shall say may be of more weight, when everyone is known not to speak his own thoughts only, but those of a great number of men; yet they are not strictly and properly obliged to give account of their actions to any, unless the whole body of the nation for which they serve, and who are equally concerned in their resolutions, could be assembled. This being impracticable, the only punishment to which they are subject if they betray their trust, is scorn, infamy, hatred, and an assurance of being rejected, when they shall again seek the same honor. And tho this may seem a small matter to those who fear to do ill only from a sense of the pains inflicted; yet it is very terrible to men of ingenuous spirits, as they are supposed to be who are accounted fit to be entrusted with so great powers. But why should this be liberty with a mischief if it were otherwise? or how the liberty of particular societies would be greater, if they might do what they pleased, than whilst they send others to act for them, such wise men only as Filmer can tell us. For as no man, or number of men, can give a power which he or they have not, the Achaeans, Aetolians, Latins, Samnites and Tuscans, who transacted all things relating to their associations by delegates; and the Athenians, Carthaginians and Romans, who kept the power of the state in themselves, were all equally free. And in our days, the United Provinces of the Netherlands, the Switsers and Grisons, who are of the first sort, and the Venetians, Genoese, and Lucchesi, who are of the other, are so also. All men that have any degree of common sense, plainly see, that the liberty of those who act in their own persons, and of those who send delegates, is perfectly the same, and the exercise is, and can only be changed by their consent.
But whatever the law or custom of England be in this point, it cannot concern our question. The general proposition concerning a patriarchical power cannot be proved by a single example. If there be a general power everywhere, forbidding nations to give instructions to their delegates, they can do it nowhere. If there be no such thing, every people may do it, unless they have deprived themselves of their right, all being born under the same condition. ’Tis to no purpose to say that the nations before mentioned had not kings, and therefore might act as they did. For if the general thesis be true, they must have kings; and if it be not, none are obliged to have them, unless they think fit, and the kings they make are their creatures. But many of these nations had either kings, or other magistrates in power like to them. The provinces of the Netherlands had dukes, earls, or marquesses: Genoa and Venice have dukes. If any on account of the narrowness of their territories have abstained from the name, it does not alter the case; for our dispute is not concerning the name, but the right. If that one man, who is in the principal magistracy of every nation, must be reputed the father of that people, and has a power which may not be limited by any law, it imports not what he is called. But if in small territories he may be limited by laws, he may be so also in the greatest. The least of men is a man as well as a giant: And those in the West-Indies who have not above twenty or thirty subjects able to bear arms, are kings as well as Xerxes. Every nation may divide itself into small parcels as some have done, by the same law they have restrained or abolished their kings, joined to one another, or taken their hazard of subsisting by themselves; acted by delegation, or retaining the power in their own persons; given finite or indefinite powers; reserved to themselves a power of punishing those who should depart from their duty, or referred it to their general assemblies. And that liberty, for which we contend as the gift of God and nature, remains equally to them all.
If men who delight in cavilling should say, that great kingdoms are not to be regulated by the examples of small states, I desire to know when it was, that God ordained great nations should be slaves, and deprived of all right to dispose matters relating to their government; whilst he left to such as had, or should divide themselves into small parcels, a right of making such constitutions as were most convenient for them. When this is resolved, we ought to be informed, what extent of territory is required to deserve the name of a great kingdom. Spain and France are esteemed great, and yet the deputies or procuradores of the several parts of Castile did in the cortes held at Madrid, in the beginning of Charles the fifth’s reign, excuse themselves from giving the supplies he desired, because they had received no orders in that particular from the towns that sent them; and afterwards receiving express orders not to do it, they gave his majesty a flat denial. 2 The like was frequently done during the reigns of that great prince, and of his son Philip the second. And generally those procuradores never granted anything of importance to either of them, without particular orders from their principals. The same way was taken in France, as long as there were any general assemblies of estates; and if it do not still continue, ’tis because there are none. For no man who understood the affairs of that kingdom, did ever deny, that the deputies were obliged to follow the orders of those who sent them. And perhaps, if men would examine by what means they came to be abolished, they might find, that the cardinals de Richelieu and Mazarin, with other ministers who have accomplished that work, were acted by some other principle than that of justice, or the establishment of the laws of God and nature. In the general assembly of estates held at Blois in the time of Henry the third, Bodin then deputy for the third estate of Vermandois, by their particular order, proposed so many things as took up a great part of their time. Other deputies alleged no other reason for many things said and done by them, highly contrary to the king’s will, than that they were commanded so to do by their superiors. 3 These general assemblies being laid aside, the same custom is still used in the lesser assemblies of estates in Languedoc and Brittany. The deputies cannot without the infamy of betraying their trust, and fear of punishment, recede from the orders given by their principals; and yet we do not find that liberty with a misshief is much more predominant in France than amongst us. The same method is every day practised in the diets of Germany. The princes and great lords, who have their places in their own right, may do what they please; but the deputies of the cities must follow such orders as they receive. The histories of Denmark, Sweden, Poland and Bohemia, testify the same thing: and if this liberty with a mischief do not still continue entire in all those places, it has been diminished by such means as suit better with the manners of pirates, than the laws of God and nature. If England therefore do not still enjoy the same, we must have been deprived of it either by such unjustifiable means, or by our own consent. But thanks be to God, we know no people who have a better right to liberty, or have better defended it than our own nation. And if we do not degenerate from the virtue of our ancestors, we may hope to transmit it entire to our posterity. We always may, and often do give instructions to our delegates; but the less we fetter them, the more we manifest our own rights: for those who have only a limited power, must limit that which they give; but he that can give an unlimited power must necessarily have it in himself. The great treasurer Burleigh said, the parliament could do anything but turn a man into a woman. Sir Thomas More, when Rich solicitor to K. Henry the 8th asked him, if the parliament might not make R. Rich king, said, that was casus levis, 4 taking it for granted that they might make or unmake whom they pleased. The first part of this, which includes the other, is asserted by the statute of the 13th of Q. Elizabeth, denouncing the most grievous punishments against all such as should dare to contradict it. But if it be in the parliament, it must be in those who give to parliament-men the powers by which they act; for before they are chosen they have none, and can never have any if those that send them had it not in themselves. They cannot receive it from the magistrate, for that power which he has is derived from the same spring. The power of making and unmaking him cannot be from himself; for he that is not, can do nothing, and when he is made can have no other power than is conferred upon him by those that make him. He who departs from his duty desires to avoid the punishment, the power therefore of punishing him is not from himself. It cannot be from the house of peers as it is constituted, for they act for themselves, and are chosen by kings: and ’tis absurd to think that kings, who generally abhor all restriction of their power, should give that to others by which they might be unmade. If one or more princes relying upon their own virtue and resolutions to do good, had given such a power against themselves, as Trajan did, when he commanded the prefect to use the sword for him if he governed well, and against him if he governed ill, it would soon have been rescinded by their successors. If our Edward the first had made such a law, his lewd son would have abolished it, before he would have suffered himself to be imprisoned and deposed by it. He would never have acknowledged his unworthiness to reign, if he had been tied to no other law than his own will, for he could not transgress that; nor have owned the mercy of the parliament in sparing his life, if they had acted only by a power which he had conferred upon them. This power must therefore be in those who act by a delegated power, and none can give it to their delegates but they who have it in themselves. The most certain testimony that can be given of their unlimited power is, that they rely upon the wisdom and fidelity of their deputies, so as to lay no restrictions upon them: they may do what they please, if they take care ne quid detrimenti respublica accipiat, that the commonwealth receive no detriment. This is a commission fit to be granted by wise and good men, to those they chuse through an opinion that they are so also, and that they cannot bring any prejudice upon the nation, that will not fall upon themselves and their posterity. This is also fit to be received by those, who seeking nothing but that which is just in itself, and profitable to their country, cannot foresee what will be proposed when they are all together; much less resolve how to vote till they hear the reasons on both sides. The electors must necessarily be in the same ignorance; and the law which should oblige them to give particular orders to their knights and burgesses in relation to every vote, would make the decision of the most important affairs to depend upon the judgment of those who know nothing of the matters in question, and by that means cast the nation into the utmost danger of the most inextricable confusion. This can never be the intention of that law which is sanctio recta, 5 and seeks only the good of those that live under it. The foresight therefore of such a mischief can never impair the liberties of the nation, but establish them.
If it be objected that I am a defender of arbitrary powers, I confess I cannot comprehend how any society can be established or subsist without them; for the establishment of government is an arbitrary act, wholly depending upon the will of men. The particular forms and constitutions, the whole series of the magistracy, together with the measure of power given to everyone, and the rules by which they are to exercise their charge, are so also. Magna Charta, which comprehends our ancient laws, and all the subsequent statutes were not sent from heaven, but made according to the will of men. If no men could have a power of making laws, none could ever have been made; for all that are or have been in the world, except those given by God to the Israelites, were made by them; that is, they have exercised an arbitrary power in making that to be law which was not, or annulling that which was. The various laws and governments, that are or have been in several ages and places, are the product of various opinions in those who had the power of making them. This must necessarily be, unless a general rule be set to all; for the judgments of men will vary if they are left to their liberty, and the variety that is found among them, shews they are subject to no rule but that of their own reason, by which they see what is fit to be embraced or avoided, according to the several circumstances under which they live. The authority that judges of these circumstances is arbitrary, and the legislators shew themselves to be more or less wise and good, as they do rightly or not rightly exercise this power. The difference therefore between good and ill governments is not, that those of one sort have an arbitrary power which the others have not, for they all have it; but that those which are well constituted, place this power so as it may be beneficial to the people, and set such rules as are hardly to be transgressed; whilst those of the other sort fail in one or both these points. Some also through want of courage, fortune, or strength, may have been oppressed by the violence of strangers, or suffer’d a corrupt party to rise up within themselves, and by force or fraud to usurp a power of imposing what they pleased. Others being sottish, cowardly and base, have so far erred in the foundations, as to give up themselves to the will of one or few men, who turning all to their own profit or pleasure, have been just in nothing but in using such a people like beasts. Some have placed weak defences against the lusts of those they have advanced to the highest places, and given them opportunities of arrogating more power to themselves than the law allows. Where any of these errors are committed, the government may be easy for a while, or at least tolerable, whilst it continues uncorrupted, but it cannot be lasting. When the law may be easily or safely overthrown, it will be attempted. Whatever virtue may be in the first magistrates, many years will not pass before they come to be corrupted; and their successors deflecting from their integrity, will seize upon the ill-guarded prey. They will then not only govern by will, but by that irregular will, which turns the law, that was made for the publick good, to the private advantage of one or few men. ’Tis not my intention to enumerate the several ways that have been taken to effect this; or to shew what governments have deflected from the right, and how far. But I think I may justly say, that an arbitrary power was never well placed in any men and their successors, who were not obliged to obey the laws they should make. This was well understood by our Saxon ancestors: They made laws in their assemblies and councils of the nation; but all those who proposed or assented to those laws, as soon as the assembly was dissolved, were comprehended under the power of them as well as other men. They could do nothing to the prejudice of the nation, that would not be as hurtful to those who were present and their posterity, as to those who by many accidents might be absent. The Normans enter’d into, and continued in the same path. Our parliaments at this day are in the same condition. They may make prejudicial wars, ignominious treaties, and unjust laws: Yet when the session is ended, they must bear the burden as much as others; and when they die, the teeth of their children will be set on edge with the sour grapes they have eaten. 1 But ’tis hard to delude or corrupt so many: Men do not in matters of the highest importance yield to slight temptations. No man serves the Devil for nothing: Small wages will not content those who expose themselves to perpetual infamy, and the hatred of a nation for betraying their country. Our kings had not wherewithal to corrupt many till these last twenty years, and the treachery of a few was not enough to pass a law. The union of many was not easily wrought, and there was nothing to tempt them to endeavour it; for they could make little advantage during the session, and were to be lost in the mass of the people, and prejudiced by their own laws, as soon as it was ended. They could not in a short time reconcile their various interests or passions, so as to combine together against the publick; and the former kings never went about it. We are beholden to H-de, Cl-ff-rd and D-nby, 2 for all that has been done of that kind. They found a parliament full of lewd young men chosen by a furious people in spite to the Puritans, whose severity had distasted them. The weakest of all ministers had wit enough to understand that such as these might be easily deluded, corrupted, or bribed. Some were fond of their seats in parliament, and delighted to domineer over their neighbours by continuing in them: Others preferr’d the cajoleries of the court before the honour of performing their duty to the country that employ’d them. Some sought to relieve their ruined fortunes, and were most forward to give the king a vast revenue, that from thence they might receive pensions: others were glad of a temporary protection against their creditors. Many knew not what they did when they annulled the Triennial Act, voted the militia to be in the king, gave him the excise, customs and chimney-money, made the act for corporations, by which the greatest part of the nation was brought under the power of the worst men in it; drunk or sober pass’d the five mile act, and that for uniformity in the church. 3 This embolden’d the court to think of making parliaments to be the instruments of our slavery, which had in all ages past been the firmest pillars of our liberty. There might have been perhaps a possibility of preventing this pernicious mischief in the constitution of our government. But our brave ancestors could never think their posterity would degenerate into such baseness to sell themselves and their country: but how great soever the danger may be, ’tis less than to put all into the hands of one man and his ministers: the hazard of being ruin’d by those who must perish with us, is not so much to be feared, as by one who may enrich and strengthen himself by our destruction. ’Tis better to depend upon those who are under a possibility of being again corrupted, than upon one who applies himself to corrupt them, because he cannot otherwise accomplish his designs. It were to be wished that our security were more certain; but this being, under God, the best anchor we have, it deserves to be preserved with all care, till one of a more unquestionable strength be framed by the consent of the nation.
Having proved that proclamations are not laws, and that the legislative power, which is arbitrary, is trusted only in the hands of those who are bound to obey the laws that are made, ’tis not hard to discover what it is that gives the power of law to the sanctions under which we live. Our author tells us, that all statutes or laws are made properly by the king alone, at the rogation of the people, as his majesty King James of happy memory affirms in his True Law of Free Monarchy; and as Hooker teaches us, That laws do not take their constraining power from the quality of such as devise them, but from the power that giveth them the strength of law. 1 But if the rogation of the people be necessary, that cannot be a law which proceeds not from their rogation: the power therefore is not alone in the king; for a most important part is confessed to be in the people. And as none could be in them, if our author’s proposition, or the principles upon which it is grounded were true, the acknowledgment of such a part to be in the people shews them to be false. For if the king had all in himself, none could participate with him: if any do participate, he hath not all; and ’tis from that law by which they do participate, that we are to know what part is left to him. The preambles of most acts of parliaments manifest this by the words, Be it enacted by the Lords Spiritual and Temporal, and Commons in Parliament assembled, and by authority of the same. But King James, says Filmer, in his Law of Free Monarchy affirms the contrary; and it may be so, yet that is nothing to us. No man doubts that he desired it might be so in England: but it does not from thence appear that it is so. The law of a free monarchy is nothing to us; for that monarchy is not free which is regulated by a law not to be broken without the guilt of perjury, as he himself confessed in relation to ours. 2 As to the words cited from Hooker, I can find no hurt in them. To draw up the form of a good law, is a matter of invention and judgment, but it receives the force of a law from the power that enacts it. We have no other reason for the payment of excise or customs, than that the parliament has granted those revenues to the king to defray the publick charges. Whatever therefore King James was pleased to say in his books, or in those written for him, we do not so much as know that the killing of a king is treason, or to be punished with death, otherwise than as it is enacted by parliament; and it was not always so: for in the time of Ethelstan, the estimates of lives were agreed in parliament, and that of a king valued at thirty thousand thrimsae. 3 And if that law had not been alter’d by the parliament, it must have been in force at this day. It had been in vain for a king to say he would have it otherwise; for he is not created to make laws, but to govern according to such as are made, and sworn to assent to such as shall be proposed. 4 He who thinks the crown not worth accepting on these conditions, may refuse it. The words le roy le veult, 5 are only a pattern of the French fashions, upon which some kings have laid great stress, and would no doubt have been glad to introduce car tel est nostre plaisir; 6 but that may prove a difficult matter. Nay in France itself, where that style, and all the ranting expressions that please the vainest of men, are in mode, no edict has the power of a law, till it be registered in parliament. This is not a mere ceremony as some pretend, but all that is essential to a law. Nothing has been more common than for those parliaments to refuse edicts sent to them by the king. When John Chastel had, at the instigation of the Jesuits, stabb’d Henry the fourth in the mouth, and that order had designed or executed many other execrable crimes, they were banished out of the kingdom by an arrest of the parliament of Paris. Some other parliaments registered the same; but those of Toulouse and Bordeaux absolutely refused, and notwithstanding all that the king could do, the Jesuits continued at Tournon and many other places within their precincts, till the arrest was revoked. These proceedings are so displeasing to the court, that the most violent ways have been often used to abolish them. About the year 1650, Seguier then chancellor of France was sent with a great number of soldiers to oblige the parliament of Paris to pass some edicts upon which they had hesitated: but he was so far from accomplishing his design, that the people rose against him, and he thought himself happy that he escaped with his life. 7 If the parliaments do not in all parts of the kingdom continue in the liberty of approving or rejecting all edicts, the law is not altered, but oppressed by the violence of the sword: And the prince of Condé who was principally employ’d to do that work, may, as I suppose, have had leisure to reflect upon those actions, and cannot but find reason to conclude, that his excellent valour and conduct was used in a most noble exploit, equally beneficial to his country and himself. However, those who are skilled in the laws of that nation do still affirm, that all publick acts which are not duly examined and registered, are void in themselves, and can be of no force longer than the miserable people lies under the violence of oppression; which is all that could reasonably be said, if a pirate had the same power over them. But whether the French have willingly offer’d their ears to be bor’d, or have been subdued by force, it concerns us not. Our liberties depend not upon their will, virtue, or fortune: how wretched and shameful soever their slavery may be, the evil is only to themselves. We are to consider no human laws but our own; and if we have the spirit of our ancestors we shall maintain them, and die as free as they left us. Le roy le veult, tho written in great letters, or pronounced in the most tragical manner, can signify no more than that the king in performance of his oath does assent to such laws as the lords and commons have agreed. Without prejudice to themselves and their liberties, a people may suffer the king to advise with his council upon what they propose. Two eyes see more than one, and human judgment is subject to errors. Tho the parliament consist of the most eminent men of the nation, yet when they intend good, they may be mistaken. They may safely put a check upon themselves, that they may farther consider the most important matters, and correct the errors that may have been committed, if the king’s council do discover them: but he can speak only by the advice of his council; and every man of them is with his head to answer for the advices he gives. If the parliament has not been satisfied with the reasons given against any law that they offer’d, it has frequently pass’d; and if they have been satisfied, ’twas not the king, but they that laid it aside. He that is of another opinion, may try whether le roy le veult can give the force of a law to anything conceived by the king, his council, or any other than the parliament. But if no wise man will affirm that he can do it, or deny that by his oath he is obliged to assent to those that come from them, he can neither have the legislative power in himself, nor any other part in it than what is necessarily to be performed by him, as the law prescribes.
I know not what our author means by saying, le roy le veult is the interpretative 8 phrase pronounced at the passing of every act of parliament: For if there be difficulty in any of them, those words do no way remove it. But the following part of the paragraph better deserves to be observed. It was, says he, the ancient custom for a long time, until the days of Henry the fifth, for the kings when any bill was brought to them that had passed both houses, to take and pick out what they liked not; and so much as they chose was enacted as a law: But the custom of the latter kings hath been so gracious, as to allow always of the entire bill as it passed both houses. 9 He judiciously observes when our kings began to be gracious, and we to be free. That king (excepting the persecution for religion in his time, which is rather to be imputed to the ignorance of that age, than to any evil in his own nature) governed well; and as all princes who have been virtuous and brave have always desired to preserve their subjects’ liberty, which they knew to be the mother and nurse of their valour, fitting them for great and generous enterprises, his care was to please them, and to raise their spirits. But about the same time, those detestable arts by which the mixed monarchies in this part of the world have been everywhere terribly shaken, and in many places totally overthrown, began to be practised. Charles the seventh of France, under pretence of carrying on a war against him and his son, took upon him to raise money by his own authority, and we know how well that method has been pursued. The mischievous sagacity of his son Lewis the 11th, which is now called king-craft, was wholly exerted in the subversion of the laws of France, and the nobility that supported them. His successors, except only Lewis the 12th, followed his example; and in other nations, Ferdinand of Aragon, James the third of Scotland, and Henry the seventh of England, were thought to imitate him the most. Tho we have little reason to commend all the princes that preceded Henry the fifth; yet I am inclined to date the general impairing of our government from the death of that king, and his valiant brothers. His weak son 10 became a prey to a furious French woman, who brought the maxims of her own country into ours, and advanced the worst of villains to govern according to them. These measures were pursued by Edward the fourth, whose wants contracted by prodigality and debauchery, were to be supplied by fraud and rapine. The ambition, cruelty and perfidiousness of Richard the third; the covetousness and malicious subtlety of Henry the seventh; the violent lust, rage and pride of Henry the 8th, and the bigoted fury of Queen Mary, instigated by the craft and malice of Spain, persuaded me to believe that the English liberty did not receive birth or growth from the favour and goodness of their gracious princes. But it seems all this is mistaken; Henry the sixth was wise, valiant, and no way guided by his wife; Edward the fourth continent, sober, and contented with what the nation gave him; Richard the third mild, gentle and faithful; Henry the 7th sincere, and satisfied with his own; Henry the 8th humble, temperate and just; and Queen Mary a friend to our country and religion. No less praises sure can be due to those who were so gracious to recede from their own right of picking what they pleased out of our laws, and to leave them entirely to us as they passed both houses. We are beholden to our author for the discovery of these mysteries: but tho he seems to have taken an oath like that of the gypsies when they enter into that virtuous society, never to speak one word of truth, he is not so subtle in concealing his lies. All kings were trusted with the publication of the laws, but all kings did not falsify them. Such as were not wicked and vicious, or so weak as to be made subservient to the malice of their ministers and flatterers, could never be drawn into the guilt of so infamous a cheat, directly contrary to the oath of their coronation. They swear to pass such laws as the people chuse; 11 but if we will believe our author, they might have pick’d out whatever they pleased, and falsely imposed upon the nation, as a law made by the lords and commons, that which they had modeled according to their own will, and made to be different from, or contrary to the intention of the parliament. The king’s part in this fraud (of which he boasts) was little more than might have been done by the speaker or his clerks. They might have falsified an act as well as the king, tho they could not so well preserve themselves from punishment. ’Tis no wonder if for a while no stop was put to such an abominable custom. ’Twas hard to think a king would be guilty of a fraud, that were infamous in a slave: But that proved to be a small security, when the worst of slaves came to govern them. Nevertheless ’tis probable they proceeded cautiously: the first alterations were perhaps innocent, or, it may be, for the best. But when they had once found out the way, they stuck at nothing that seemed for their purpose. This was like the plague of leprosy, that could not be cured; the house infected was to be demolished; the poisonous plant must be torn up by the root; the trust that had been broken was to be abolished; they who had perverted or frustrated the law, were no longer to be suffered to make the least alteration; and that brave prince readily joined with his people to extinguish the mischievous abuse that had been introduced by some of his worthless predecessors. The worst and basest of them had continual disputes with their parliaments, and thought that whatever they could detract from the liberty of the nation, would serve to advance their prerogative. They delighted in frauds, and would have no other ministers but such as would be the instruments of them. Since their word could not be made to pass for a law, they endeavoured to impose their own or their servants’ inventions as acts of parliaments, upon the deluded people, and to make the best of them subservient to their corrupt ends and pernicious counsels. This, if it had continued, might have overthrown all our rights, and deprived us of all that men can call good in the world. But the providence of God furnished our ancestors with an opportunity of providing against so great, so universal a mischief. They had a wise and valiant prince, who scorned to encroach upon the liberties of his subjects, and abhorred the detestable arts by which they had been impair’d. He esteemed their courage, strength, and love, to be his greatest advantage, riches and glory. He aimed at the conquest of France, which was only to be effected by the bravery of a free and well-satisfied people. Slaves will always be cowards, and enemies to their master: By bringing his subjects into that condition, he must infallibly have ruined his own designs, and made them unfit to fight either for him or themselves. He desired not only that his people should be free during his time, but that his successors should not be able by oblique and fraudulent ways to enslave them. If it be a reproach to us that women have reigned over us, ’tis much more to the princes that succeeded our Henry, that none of them did so much imitate him in his government as Queen Elizabeth. She did not go about to mangle acts of parliament, and to pick out what might serve her turn, but frequently passed forty or fifty in a session, without reading one of them. She knew that she did not reign for herself, but for her people; that what was good for them, was either good for her, or that her good ought not to come into competition with that of the whole nation; and that she was by oath obliged to pass such laws as were presented to her on their behalf. This not only shews that there is no such thing as a legislative power placed in kings by the laws of God and nature, but that nations have it in themselves. It was not by law nor by right, but by usurpation, fraud and perjury that some kings took upon them to pick what they pleased out of the publick acts. Henry the fifth did not grant us the right of making our own laws; but with his approbation we abolished a detestable abuse that might have proved fatal to us. And if we examine our history we shall find, that every good and generous prince has sought to establish our liberties, as much as the most base and wicked to infringe them.