CHAP. I. Concerning the Original of Sovereign Power.

WE may assert, That the Rights of Sovereignty, to speak properly, have no Institution in the Law of Nature. A Father indeed has his Chil­dren in his power, and they are subject to him by a Natural Institution, as well because they have received their Life from him, which is the Foundation of all Good, as also for that they are beholden to him for their Education; which is ano­ther [Page 2] Life, no less precious than the former. But though this Power were not included within the narrow Bounds of each particular Family, and though we should suppose it extended to the taking away of the Life of Rebellious Children, yet certain it is, that the Paternal Power is not unbounded, with respect to Time; for as soon as a Man is married, and begins to form another Family, this Act emancipates him from the Paternal Authority, as Jesus Christ supposes, when he said to the blessed Virgin, John 2.4. Is not my hour come yet? Which words Gregor Nyss [...]n explains thus, An nondum venit mea hora, quae praebet aetati ut imperet, & sui sit Juris? Is not my hour come yet, which allows my Age to command, and leaves me at my own dispose? But the case is not the same with Magi­strates, whose Authority reacheth over a whole Society com­posed of several Families; for as they do not owe their Birth to the Magistrate, nor are obliged to him for their Education, as they are to their Parents, their Command cannot be founded on the Right of Nature, which subjects Children to their Parents.

Neither can we suppose that the Authority of Magistrates is bottom'd upon some Excellence they have by Nature above their Subjects. I own there be some Vertues and Talents which do ordinarily submit the Spirits of such as know them, to those who are adorned therewith; and the highest degrees of Vertue and Wisdom do naturally procure a veneration for those that possess them. But who sees not, that this is insuffi­cient to be the foundation of Civil Power. A Magistrate is not always distinguished by these illustrious Talents and Qua­lifications, which so powerfully attract Veneration in parti­cular. A Man may be very wise, and yet be ne'er the more obeyed by those who don't understand the price of Wisdom. He may be very valiant, but his Courage, being unaccom­panied with Prudence, may render him contemptible in the Eyes of those who apprehend his Temerity. It is plain then, that it is not this natural difference God hath put between Men, which is the ground of the Magistrates Authority▪ Indeed, the same is the case of Magistracy, as of the Cere­monial Law, which entred into the World because of Sin; for certainly, if Men in their behaviour liv'd up to the Pre­cepts of the Law of Nature, one Man would never invade [Page 3] what his Neighbour is possessed of, either by Inheritance, or by his own Industry: One Man would not defile the Bed of his Neighbour, or spill his Blood, to hinder the Opposition his Neighbour might make against his Enterprises. But be­cause Men are so prone to violate those equitable Laws, to sati fie their Passions, and corrupt Inclinations, therefore is the Magistrates Authority become necessary.

And how great soever we may conceive this Authority to be, yet we must acknowledge, that God never instituted it till after the Deluge, as appears from Gen. 9.6. We read in the Scripture, that Cain, when he had kill'd his Brother Abel, told God, That he feared that every one that met him, would kill him; but do not find, that he did in the least ap­prehend, that his Father, as his Natural Sovereign, should sentence him for that Murther. This Impunity of Cain prov'd an encouragement to Lamech, as we see Gen. 4.24. It seem'd indeed that the Authority of Adam, their common Father, together with that of the Patriarchs, might have been suffi­cient to contain Men within the Bounds of their Duty, as well as the near Relation and Alliance that was between them. But this Paternal Authority, having by the space of fifteen Ages been found incapab [...]e to restrain the licentiousness of Men, and too weak to put a stop to their Debaucheries and Murthers, which at last drew down the Deluge upon them; we find that God afterwards instituted Magistracy, as a stronger Curb, to stop the impetuosity of Mens exorbitant Passions. Moreover, Men being obliged to separate them­selves from one another, in order to their peopling of the whole Earth, consequently could not observe the same Prin­ciples of Communion which linked them together under the Patriarchs; wherefore it was Natural to substitute to that Pa­triarchal Authority, a Government more accommodated to the state of Men in their different and dispersed Habitations. Wherefore, because Men had learnt from the Example of those who were drowned by the Flood, to make small account of the remonstrances of their Parents, as well as of the Divine Denunciations, God thought fit to lay a more strong Curb in their Mouths, and to restrain them, by making temporal Death the Reward of those who would not be contain'd within the Bounds of their Duty by the fear of Eternal [Page 4] Sufferings, in these words, Whosoever sheddeth Man's Blood, by Man shall his Blood be shed. This being the sense and full import of this Declaration, according as the Jews unanimously agree. Now this granted, it is evident, that since Soveraign Power was instituted by God for a Curb to sin, we must suppose that there be Laws, which serve for a foundation of Society, and for the conservation of which Soveraignty was intro­duced at first: 'tis to make these Laws inviolable, and by punishments to restrain the unruliness and exhorbitance of the passions of Men, from transgressing of those Laws, that the Sword at first was put into the Soveraign's Hand, and power given him to punish Criminals, or utterly to cut them off, as destructive to Society it self.

From these two Principles, we very naturally deduce a third, viz. That the Character of a Soveraign, consequently requires, That he who is clothed therewith, be one of the most perfect of the Society, that is one at the greatest distance, from a disposition to violate the Laws: for if he encourages others by his Example to violate them, and if by this means he subvert the foundations on which the So­ciety subsists, directly crossing the design and aim for which he was made a Soveraign; it is evident to a demonstration, that he possesses the Soveraignty contrary to the intention of God, and the natural end of Society.

Nothing is more evident, than what I have here laid down; but it respects only the Society, considered with regard to those of whom it consists: for if we look upon it with respect to those who are strangers, and who may destroy it, by invading it by force of Arms, it appears clearly that the Soveraign, being the defender of Justice at home, finds himself natu­rally obliged, to protect the Society by Force; so that toge­ther with Justice, he ought also to be qualified with the Cha­racter of Valiant, that he may oppose himself, with Suc­cess, to all Enemies from abroad, and hinder them from de­stroying the Society.

And lastly, the Character of W [...]se is particularly required in a Soveraign, for neither Justice, nor Valour, are of any great use, as lo [...]g as they are separate from Wisdom and Prudence. Wisdom is useful in Peace, and no less in time of War, is necessary with respect to Subjects as well as [Page 5] Enemies; she shines forth in Treaties, as well as Ruptures; she is of use in the prosecuting of injuries, as well as in the choice of means to obtain reparation; she finds out Ex­pedients, against the greatest difficulties; and, in a word, we may say that without her, the Political Government is as a Body without a Soul, and a Ship without a Pilot, or Helm, which is abandoned to the Winds to be tossed at pleasure, and which at last perisheth infallibly by dashing it self against the first Rock it meets with.

If we attentively heed what hath been here advanced, we shall find that this has served as a common Principle, to all the different forms of Government, that have at any time obtained amongst Men. Indeed it is not easie to de­termine, what form of Government God instituted by that Law, mentioned in the Ninth of Genesis, whether he by those words determined the Authority to one or more Ma­gistrates; because the word Man, is often taken collectively, to express many; so that the words are too general to de­cide this question: they conclude only that Murther is to be punished with Death. From whence we infer that the Magi­strate has power to punish Murtherers and other Criminals, that destroy the Laws, whereby the Society subsists. It is manifest therefore that by reason and experience Men came to prefer one kind of Government before another, and variously to divide the Authority amongst many, according to the different acts to which it ought to be extended.

It seems that force was at first only made use of as a refuge for the weak, either to destroy the wild Beasts, that devoured their Cattle, and some times Men too; or to put a stop to the injustice of those, whose bodily strength in­spired them with designs to rob the weaker sort of their possessions. And it is very probable, that forasmuch, as soon after, they observed that the force which protected them, might as well oppress the Society, for whose de­fence and protection it was armed, they found that Ma­gistracy could not be lookt upon as an advantage, if it were not committed to the wise conduct of the most an­tient of the Society, who seem to have been the Judges, Magistrates and Counsellors of State, among all Govern­ments, that were ever instituted with any prudence. Those [Page 6] who considered the great parts that are necessary for the governing of a Society, preferred the way of choosing their Governours. Those who had experienced the ill ef­fects of corrupt Elections by Bribes or other ways, fol­lowed the way of taking for their Governours, the Chil­dren of those who had ruled them with Prudence. They who observed that one person is rarely capable of resist­ing and moderating so many different passions as may trouble a Society, thought good to divide the command amongst many. Those who took notice that this equality produced dissensions amongst many Governors, placed the power in one person only. Those that were aware that a single person might overturn the Laws, and set up his will as the only rule of his conduct, found it necessary to preserve to the People their share in the Government. In a word, every Nation chose that way they thought most sure and proper to obtain the true ends of an happy Go­vernment in order to secure and preserve the Society.

What I have said in general, concerning the original of Soveraignty or Magistracy amongst Men, shews that it can­not be denied, but that the institution thereof is Divine, though God did not think fit to determine it to any cer­tain form of Magistracy, whether of Monarchy, Aristo­crasie or Democrasie, but left it to the Peoples free choice, to pitch upon that form they should judge most convenient for them. But to procure a farther light to this matter, we must consider the Judgment of Philosophers and Divines con­cerning this point.

CHAP. II. The different Opinions of Philosophers and Divines concerning this matter.

IT may be said, That there are three Opinions concerning the original of Soveraign Magistracy. Cicero, in his Books of the Commonwealth, was of Opinion, as appears from the definition he sets down, That Governments were at first formed by an effect of pure necessity, St. August. de civit. D. which forced the weaker to seek for aid and succour, from those that were stronger, to secure themselves from oppression. This was also the Opinion of the famous Archbishop of Burgos in the Council of Basil. Fascic. Fol. 7.

The Body of Christian Divines maintains that the Au­thority of the Sword was instituted by God, as may be seen Gen. 9. And it appears that whereas before the De­luge the Patriarchs were the only Masters of their Fami­lies, which gave occasion to abundance of Crimes, Justice not being executed with vigour enough, to put a stop to the course of exorbitances: as long as it was in the hands of a common Father, God was pleased to enact a Law whereby the Sword should no longer be bound up to each head of a Family, but committed to one who should be particularly charged therewith by the common consent of the Society.

The Third Opinion is that of some new Divines, and other flatterers of the unbridled power of Princes, who maintain that Kings derive their Authority immediately from God, and not mediately from the consent of the People. Thus Peter de Marca declares himself on this point, de concord. lib. 2. c. 2. v. 1, 2, 3. following therein the senti­ments of Victoria and Duval, the one a Spaniard and the other a Frenchman.

We need not wonder, if Cicero was mistaken in the de­ciding of this matter, as being destitute of that light, which Moses furnisheth Divines with. He determines this [Page 8] point only as a natural Philosopher. However we must observe that Cicero himself, and the most wise amongst the Heathens, have sufficiently given to understand, that they conceived Magistracy, without which it is impossible for a Society to subsist, to be of Divine Original, as well as all other good and profitable institutions for the benefit of Mankind.

But not to insist upon this, forasmuch as all Divines agree that the original of Magistracy is from God, our business only is, to enquire, which is the truer Opi­nion, theirs who acknowledging the Divine institution of Magistracy, maintain that this Authority is communicated to the Powers and Magistrates by the People, or of those who pretend that God immediately communicates the same to the Magistrates that are invested therewith.

In order to the resolving of which, before we pass any further, we are to observe, 1st. That the Body of Divines who defend the former of these Opinions, do agree, That the Authority of Magistrates is not to be accounted less Divine, because it does not immediately come down from God. They own these Two things. 1st. That God has ordered there should be Sovereign Magistrates to regulate and govern Societies. 2ly. That God having divested private Persons of the right of doing themselves Justice, in case of Offences given them, has ordained that the Magistrates should have the Sword put into their Hands, by Capital and other Punishments, to stop the violence of those who disturb the Peace of the Society, and violate the Rules of Justice. And in this respect they acknowledge Magistracy, [...], a divine Settlement and Institution.

Secondly, We are to observe, That when on the other hand they maintain, That the Power of the Magistrates is conferred by consent of the People; in which respect they pretend, That St. Peter calls them [...], that doth not in the least diminish the Authority of this Divine In­stitution of Magistrates, which they refer solely and imme­diately to God.

Thirdly, That whatsoever Notion we may frame of the Power of Magistrates, whether we suppose it conferr'd upon [Page 9] them immediately by God, as M. de Marca pretends; or whether it be only mediately derived to them from God, by the intervening consent of the People, the thing is still the same; because it is evident, that this Power is not communi­cated to them, but for the subsistence of the Society, the Pre­servation whereof is the natural End of Government and Sovereignty.

Fourthly, That they do not oppose this Notion of the im­mediate Collation of the Sovereign Power by God, save only that they might express themselves more exactly, and distin­guish the ordinary Governments of the World from the King­dom of Israel. For the same Divines generally own, That the Institution of the Royal Power in Israel, was an immediate Act of God; but withal maintain, That the same cannot be said of other Sovereigns.

This laid down, I say, That nothing can be imagined more vain, than the second of these Opinions; and it is enough only to understand the terms which those Divines make use of to express their Sentiment, concerning the Original of Sovereign Magistrates in every State, and to consider the Proofs they alledge, to evidence the falseness of it; which Opinion ac­cordingly I shall refute in the following Third Chapter.

CHAP. III. That Sovereigns do not receive their Power imme­diately from God.

I Say then, That it is false, That Sovereigns receive their Power immediately from God. This is a Truth may be easily made out. Indeed, though the Power of Magistrates, of what sort soever they be, be of Divine Institution; which of all the present Sovereign Powers, whether Monarchs, Com­monwealths, or any other Form of State, was instituted im­mediately by God? And who are the Persons invested therewith, whom God has immediately called to that sort of Power? All States are formed either by Conquest, or by Consent of the People; which intervenes in the Election at the first Founding of a State, and which is re­newed in every subsequent Election of Princes, or which is perpetuated in successive Kingdoms. Was there any thing like to this in the advancement of David to the Royal Dig­nity?

Secondly, Is it not visible, that in order to an immediate Establishment from God, there is required an express Reve­lation, such as may be equivalent, at least to a publick de­claration of his Will, in favour of him whom he will set on the Throne? Thus things were carried with respect both to Saul and David; and who will affirm there is any King now in the World that has attain'd the Regal Power after this manner? If there be any, let them acquaint us with his Name, and the manner of God's revealing himself to the People, to make them know, that he immediately made choice of such a Person to supply that Place.

Thirdly, Who sees not, that the whole Discourse of these Divines is nothing but a continual Equivocation? An Office is instituted immediately by God; wherefore all that are called by ordinary ways and methods, are immediately esta­blished in it by God. I had as lief they should tell me, That because Marriage derives its first institution and begin­ning [Page 11] from God in the Person of Adam and Eve, whom God joyned to Adam, That therefore all Marriages are made im­mediately by God, and that he is the immediate Author of them. The one is every whit as reasonable as the other, and in the mean time the second is absolutely false. The Author of Ecclesiasticus saith, Chap. 7.16. That the Art of Tilling the Ground was created by God: Doth it follow from thence, that God hath immediately setled such and such a one in the Calling of Husbandry.

Fourthly, If all Sovereign Magistrates desire their Institu­tion immediately from God, how is it that we find so great a diversity in the Form of these Sovereign Governments. In some States we find Kings, in others Aristocrasies or De­mocrasies: Doth not this variety make it evident, that though God indeed have instituted Magistracy in general, yet he hath left it to the People to determin the Form of it, according to their Need, their Inclinations, and the Circum­stances wherein they find themselves.

Fifthly, Doth it not most evidently appear, That if the Person were immediately instituted by God, it would be great folly for any Society to trouble themselves about enact­ing Laws for a Free Election at every Change, or to establish it by way of Succession in Monarchies? If God establisheth all Sovereign Magistrates immediately, to what purpose are all those Rules and Limitations, which by their variety afford us a sufficient demonstration, that this Institu­tion is not an immediate effect of the Deity.

The Philosophers were fully of this Opinion, as we may see in the Books of Aristotle's Policy; where he makes out, That the cause of the various sorts of Governments that are in the World, is nothing else but the different Judgments of the People, concerning the several sorts and manners of Government: Some of which have chosen one Form, to avoid the Inconveniencies they foresaw and apprehended from another; and others again being induced to embrace that Form, by the advantages they discerned in it, rather than another. This is a matter we ought to mind very carefully, that we may not put a ridiculous sense upon some Ex­pressions of the Antients when they speak of Magistracy, as founded in the Law of Nature.

The Lawyers agree with the Philosophers in this Point. Ʋlpian and Justinian both of them tell us, That the People of Rome bestowed upon the Emperor Augustus, by the Royal Law, all the Right and Empire by which they were sub­jected unto that Emperor, lib. 1. ff de Constit. Princip. Theo­philus explains what properly a Prince is, in these terms; A Prince (saith he) is a Person who has received from the People the Power of Commanding and Ruling over them, §. 6. de Jure Natur. & Gent.

The Canonists of the Church of Rome are no less express in this Matter, than the Philosophers and Lawyers. Car­dinal Bertrandi lays it down for his Foundation, in his Trea­tise of the Civil and Ecclesiastical Power, Bibliotheca Patrum, which was copied by an English Monk, and is found among the Manuscripts.

The Divines of that Communion make a Principle of it, as appears by the Discourse of the Archbishop of Burgos, which I have before cited. And Soto saith, lib. 4. de Just. & Jure, Regalem potestatem, Populi naturali lumine erexerunt, That the People, by the Light of Nature established Kingly Power

M. de Marca owns, That the Canonists of his School do not favour his Opinion; but withal maintains, That they have fallen upon the Opinion contrary to his, that they might make a greater difference between the Civil and Ec­clesiastical Power, than there is indeed; and to depress the Civil Power below the Ecclesiastical. He might also have alledged against the Divines of his School, That in this Question they relied too much on the Judgment of Aristotle, who was their St. Paul, until the times of the Reformation. However, that which M. de Marca declares as his Judgment concerning this Matter, is too generally spoken: For we see Marsilius of Padoua following the same Principles, in his Defensorium Pacis, though he undertook the Defence of the Emperor Lewis of Bavaria, against the Enterprises of the Pope; but however he pretends, That the Scripture and Antiquity furnish us with quite other Notions about this Matter; which we shall next make it our business to enquire into.

CHAP. IV. An Examination of the Arguments which are alledged for the Proof of this Opinion.

HE alledges only two places of Scripture, the one is that of St. Paul, Rom. 13. and the other is taken from the Sixth Chapter of the Wisdom of Solomon, which is an Apocryphal Book; but neither the one nor the other proves the thing he pretends.

It appears by the former of these Texts, That the Apostle endeavours to oppose the Opinion of those among the Jews, who pretended, That because the Monarchies or States of the Heathens had not an immediate Institu­tion from God, as that of Israel, to which God had in a particular manner subjected the Jews, that therefore they were not obliged to submit themselves to the Authority of Heathen Magistrates. Wherefore he points them from that immediate Institution made in favour of the Kings of Judea, to that common and more ancient Institution of Magistracy among the Posterity of Noah, which Moses sets down, Gen. 9. as being sufficient to make the Authority of Magistrates respected, whatsoever Nation or Religion they might be of; whether they deriv'd their Power from the Consent of the People, or whether they had obtained it, by Rob­bing the lawful Sovereigns of their Authority, as the Ro­mans had done, with respect to the Kings of Judea. In a word, the Apostle in that place intends nothing else but to authorize the Maxim of the Essenians, as it is re­lated by Josephus, lib. 2. de Bello Jud. cap. 12. Fidem omnibus servare, maxime verò principibus, [...], to be faithful and true to all Men, but more especially to Princes; because the Sovereign Command never befel any one without the Divine Providence. These Essenians maintained against the Sect of the Pharisees, that [Page 14] they might lawfully submit themselves to a Heathen Con­queror, without always fostering a Spirit of Rebellion against him, and without disputing or questioning his Au­thority, under pretext that the Jewish Government had been established immediately by God. But doth this Text of St. Paul in the least prove, that every Pagan Prince was immediately set upon the Throne by God?

The Passage quoted from the Sixth Chapter of the Wis­dom of Solomon, is nothing at all to their purpose; because the Author of that Book addresses himself, in all appearance, to the Kings of Judea, who, as all agree, deriv'd their Accession to the Throne immediately from God; so that it might well be said to them, Power is given you of the Lord, and Sovereignty from the Highest.

True it is, That Jesus Christ expresseth himself in words much to the same purpose, John 19. speaking to Pilate the Governor of Judea; Thou couldest have no power at all against me, except it were given thee from above. But it is visible that he speaks this only with respect to the Order of the Divine Providence, which had suffered the Throne of Judea to be overthrown by the Romans; so that instead of her Natural Magistrates, she was now subject to Strangers. The Empire of Nimrod was founded in the same manner with that of the Romans, and yet I scarce think any Man will pre­tend, that God committed the Sovereign Power to him, in the same manner that he did vouchsafe it to David.

True it is, That the Scripture gives Cyrus the K [...]ng of Persia the Title of the Lord's Anointed; which seems to import, as if God had in an immediate manner raised him to the Throne like David: But this is no due consequence; for the Notion of the Lord's Anointed, signifies only his particular Destination of him, to be the Instrument of the Jews deliverance from their Captivity. I freely own, That a Divine Providence may ordinarily be observed in the Elevation of Kings; and that the same may be taken notice of, as intervening in a more especial manner, in the raising of those Kings whom God designs to make use of for the good of his Church, which is linked with the Civil Society: But I do not conceive that from thence it will follow, either that the acts of ordinary Providence, [Page 15] manifesting themselves upon occasions, are sufficient to make an immediate divine Institution of Princes, no more than other Events, wherein Providence intervenes, can properly be called immediate Effects of the Deity; nor that the ex­traordinary Acts of Divine Providence, as were those that respected Cyrus, ought to be alledged as an Argument in common Events.

The words we find in the Eighth Chapter of the Proverbs, are also commonly quoted to this purpose, By me Kings Reign, and Princes decree Justice; but it is manifest, that this is said with regard to Wisdom, of which he was speak­ing before, and which displays it self in the management of Humane Affairs, without intimating any immediate Act of the Deity.

Moreover we are carefully to observe, That though the Scriptures attribute to God the Institution of Magistrates, in which respect also they call them a Divine Institution, and ascribe to God the Exaltation of Princes in particular; yet they never express themselves but in a very general manner, as when they set forth to us the part God bears in all Events. Thus God is said to overturn Thrones, in like manner as he is said to erect them; he is said to settle Tyrants, as well as the most lawful Kings: All which Expressions relating to his Providence, which does or per­mits things by the intervening ministry of Second Causes, can have no influence upon the Judgments we are to make concerning the Authority of Princes, with regard to their Divine institution.

M. de Marca makes use of some Passages out of the Fathers, to confirm his Opinion. But, First, they infer nothing but what we are ready to grant, viz. That God having or­dained Magistracy, those who are invested therewith, ought to be considered, as the Ministers of God; which is sufficient for a foundation of their Authority, without any necessity of supposing, that God immediately endows every King with the Royal Power, wherewith he is invested. This is the Opinion of Theophilus Bishop of Antioch, ad Au­tol. Lib. 1. where he saith, That the Prince has received in some sort from God the administration of the Govern­ment ( [...]) which expression doth visibly respect a [Page 16] mediate institution, but doth not at all express an im­mediate institution, as M. de Marca conceives. Se­condly, They distinctly lay down, That Magistracy is a humane institution, as St. Peter qualifies it, because all Magi­strates, and Kings themselves are ordained, and established by Men; as Oecumenius explains that place, 1 Pet. 1.2.

St. Irenaeus says no more, lib. 5. contr. Haer. C. 24. He refutes the Opinion of the Gnosticks, who would have Ma­gistrates to be an institution of the Devil, and he makes it appear, that both the Old and New Testament con­firm, That Magistrates are one of the means which Provi­dence has judged necessary to put a stop to the Cur­rent of Wickedness and Crimes, which had deluged the Heathen World, whom the fear of God alone was not able to keep within the bounds of Justice. To which purpose he saith, Cujus jussu homines nascuntur, hujus jussu & Reges instituuntur; by whose command Men are born, by his command Kings are ordained. Neither doth Epiphanius advance any thing more than this. Haeresi 40. contra Archontic.

Tertullian expresseth himself to the same purpose, in his Apologet. cap. 30. Inde est Imperator, unde & homo antequam Imperator; inde potestas illi, unde Spiritus. Thence is the Emperor, from whence Man is before he was Emperor, thence he has his power from whence he has his Breath.

St. Chrysostom exactly follows their footsteps, as well as St. Isidore Bishop of Pelusium, Lib. 2. Epist. 206. Indeed how could St. Chrysostom teach any other Doctrine, who in his 23. Hom. upon the Epistle to the Rom. plainly asserts, That Jesus Christ never gave his Laws with design to overturn the received forms of Government, [...]. and expresly denies that those words in the 13. Chap. of the Epistle to the Romans; for there is no power but what is of God, must be understood con­cerning Government in general, and not of those who are invested therewith. Quid dicis, Omnis ergo Princeps à Deo constitutus est? Istud, inquit, non dico. Neque enim de quovis Principe sermo mihi nunc est, sed de ipsa [...]re. Quod enim principatus sunt, quod isti quidem imperant, isti vero subjecti sunt, quod­que non simpliciter ac temere cuncta feruntur.... divina sa­pientiae [Page 17] opus esse dicit. Propterea non dicit, Non enim Prin­ceps est nisi à Deo, sed de re ipsa disserit dicens; Non enim Potestas est nisi à Deo. What do you say then that every Prince is constituted by God? No I don't say so, for I am not speaking here of every particular Prince, but of the thing it self. For that there are Principalities, that some rule, and others obey, and that all things are not carried rashly and without order; this the Apostle de­clares to be an effect of the Divine Wisdom. Where­fore also he does not say, for there is no Prince but who is of God, but, for there is no power but what is of God.

St. Augustin de Civitate Dei, Lib. 5. cap. 21. holds forth no other Doctrine. Qui Augusto Imperium dedit, ipse & Neroni, qui Vespasianis, vel Patri vel filio, Suavissimis Imperatoribus, ipse & Domitiano crudelissimo. He that bestow'd the Imperial Dignity upon Augustus, gave it also to Ne [...]o, and the same who advanced the Vespasians, Father and Son, most beneficent Em­perours, exalted also the most cruel Domitian. All which ex­pressions do evidently refer to nothing else, but the order established by the Divine Providence, without, in the least, deciding the question in Controversie.

Neither do I find that the Bishops of France entertain'd any different Opinions concerning this matter, when they represented to Lewis the good, the greatness and importance of his Dignity, and the necessity that lay upon him, to afford Justice to all his Subjects, because he owed his Soveraign Dignity to God himself and his Predecessors. Quapropter, say they, quisquis caeteris mortalibus, temporaliter imperat, non ab hominibus, sed à Deo, commissum sibi regnum credat. Multi namque munere Divino, multi etiam Dei permissa regnant. Wherefore whosoever temporally rules over other Men, ought to think his Kingdom committed to him, not by Men but by God. For many do reign by a Divine Grant, and many only by Divine Permission. Which words were used by them, only as a motive, to oblige that Emperour, not to look upon the Royal Dignity as an Inheritance or Possession, but as a charge or office instituted by God, of the ad­ministration whereof he was to give an account to God. Concil. Paris. Lib. 2. cap. 5. Anno 829. The Fathers also of the Council of Trosly, simply declare, That the Royal [Page 18] Dignity was instituted by God, when the Apostle said, Be subject to the King as chief, which would be a strange Con­clusion, if he had not had an eye to the institution of the Office, and not to the immediate institution or consecration of the Person.

I know it has been customary for Emperors and Kings, to look upon themselves as chosen of God, Crowned of God, &c. which hath given occasion to some Painters and Gravers to represent them, as receiving their Crowns from Heaven. I am not ignorant also that the Emperour Lewis, of Bavaria, maintains, That the Imperial Power and Au­thority, is immediately from God, and not from the Pope; but his first expression respects only the order of Providence, and the second the Pope's pretensions, who maintained, That Emperors held the Empire as a Fief, whereof the Pope was the Lord Paramount.

After all, though these Gentlemen, who attribute to every Soveraign Magistrate and to every King, the power which they enjoy, as immediately conferred upon them by God, think by this means to lay a more sure foundation for the veneration which the People owe to the Royal Power, it is very evident that they advance little by this their Opinion, if it be true, that this power, though we should suppose it granted immediately by God, must be limited by certain Laws, and that the People have right to impose them upon them, when they elevate them to that Dignity.

CHAP. V. Whether the Power of Soveraigns be absolute and unlimited.

IT is commonly conceived that there are two sorts of Government, the one Absolute, and the other Li­mited: Absolute Government is supposed to be that, where­in the Governor doth so absolutely enjoy all the Autho­rity necessary for the subsistence of the Society, that none share with him in it, so that he exerciseth it according to his good pleasure. In such a Government as this, the Prince can make Laws, and again revoke, or dispence with them. He can settle inferiour Magistrates, and discharge or remove them again at pleasure, and repeal their Acts or Decrees. He can declare War to the Ene­mies of the State, and make Peace with them. He can save the Lives of Criminals, or take them away: all which he may do without any one having any right to contra­dict or oppose him. Neither is there any thing contrary to the nature of Government, in this Absolute Power: for since it is necessary to make Laws for the good of the State, according as there is need, to nominate Magi­strates, and to remove them; to examine the Judgments of in­feriour Courts, and repeal them, if they be unjust: it is a thing indifferent to the State, by whom these things are done, so they be but done in such a manner, as to answer the natural end of Government, which is the good of the Society.

But we must take heed of conceiving any such Absolute Power inherent in any Sovereigns whatsoever, whereby they may lawfully frustrate and overthrow the ends of Govern­ment. For how absolute so ever a P [...]ince may be conceived to be, yet can he not be so in all respects: for first he is subject to the Divine Laws, as well as the meanest of his Subjects. Secondly, He is subject to the Laws that are [Page 20] founded on the Right of Nations. Thirdly, He is obnoxi­ous to the fundamental Laws of the State, which he governs. Fourthly, he lies under an obligation of follow­ing the Laws of the Government, committed to his charge, so far as to endeavour to obtain the ends thereof, by pro­curing the happiness of the Society.

But if any Man conceives a Government absolute in all re­spects, and whereof the Sovereigns are not bou [...]ht up by the four Tyes abovesaid, he imagines an illegal and monstrous Government; neither can there be any such, but the Ty­rannical, which is no Government at all. For seeing that Tyranny is diametrically opposite to the natural end and aim of Government, I do not see how it can be ranked with lawful Governments, there being as much absurdity in supposing it such, as to suppose an unjust and impossible Law, to be a good and true Law, because published by one, who has the Authority to do it.

I cannot find that ever there was any Empire or Authority Absolute in all respects, as is pretended. Those very So­veraigns which are conceived to be resolute to this degree, as those of the Medes and Persians, had notwithstanding some irrevocable and inviolable Laws, which were funda­mental to that State; as appears from the Book of Daniel, Aristotle seems to speak of these s [...]s of Government. Polit. Lib. 3. 210. where he disti [...]ishes them from a Tyrannical Government, forasmuch as they were establish­ed upon some fundamental Laws or Customes. And I ve­ry much question, whether any such example can be pro­duced, no not in the Empire of the Turks, which has been always lookt upon as the most Absolute and Despo­tical Government, where the Sover [...]igns have attributed to themselves so vast and unbounded a Power, and actually enjoy'd the same.

I know it is commonly apprehended, that Conquerors, such as Nimrod, and many others, did in so absolute a manner possess themselves of all the Rights of Sovereignty, that there was nothing left to their Subj [...]cts of what Rank or Order soever. But to declare my sense of this matter, we are to observe, First, That Conquerors had no other aim, but to rob other Sovereigns of their Power, without changing [Page 21] any thing in the Government of the State they had in­vaded. Secondly, That those Invasions having no other foundation, but a Conquest by force of Arms and Violence, contrary to the Law of Nature, which made Seneca call this sort of Conquerors Magnos & furiosos Latrones, great and furious Robbers; these Conquerors easily perceived, it was necessary for them, to trim and rectifie this their unjust Power, if they would have their Authority to be lasting: whereupon they accordingly took care to moderate it, by Conventions and Laws, to the Justice of which the People gave their consent. Thirdly, That these Conventions and these Laws, were to speak truly and properly, the lawful Title of all the Authority their Subjects owned in them. Fourthly, That this consent of the Subjects, always supposeth, that the ends of Government be preserved, except we should per­swade our selves, that there be Subjects Fools enough to con­sent to a Government, whose aim should not be levelled at their Advantage and Prosperity.

'Tis horribly to delude ones self, to found the Idea of an Absolute Government in all respects, amongst Men, upon a notion of the absolute Empire God has over all his Creatures: for is it not evident that this Divine Empire, supposeth an immoveable Justice, and infinite wisdom, and a most tender love for his Creatures, which are the Es­sential Attributes of God, and which cannot be found in any mortal Man? But some, it may be, will tell me, That I contradict the Stile of Holy Scripture, in denying that Tyrants can lawfully enjoy so absolute a Power, when the Prophets tell us, concerning some Kings, That God gave them such absolute Power: as we find it ex­prest in particular concerning Nebuchadnezzar, Dan. 5.18, 19. But the answer to this Objection is obvious, First, That which ought to be referred to God's Permission only, is not to be attributed to a concession of the Deity, which latter is only sufficient to establish a lawful Right; for otherwise, we must say, That God had given a just right to the false Prophets to deceive Ahab, by their lying Ora­cles. If this be not the case, let any Man answer me these Two Questions, First, Whether Nebuchadnezzar sin­ned, in using this absolute Power, which he had, without [Page 22] any consent or concurrence of his Subjects, in killing them without cause, and contrary to the Laws of Justice and Equity? Secondly, Whether God could justly punish Ne­buchadnezzar, as he did, for making use of this Tyrannical Power, which he had suffered him to invade. Nemini injuriam facit qui jure suo utitur. He that makes use of his own Right injures no body, is a Maxim of Law.

Secondly, Otherwise we should be fain to suppose, That those, who at any times have raised themselves against Tyrants, had been great Criminals, whereas the Holy Scripture doth set them forth for Heroes, such as Ehud, who have undertaken to rid the World of their unjust op­pression, by killing them.

Possibly it may be further objected to me, That by these assertions I oppose the Doctrine of the Old and New Testa­ment, which equally command all both Jews and Christi­ans to submit themselves to the Powers that had conquered them, and particularly to the Power of the Romans, who pretended to be absolute over all their Subjects. But it will be found that there is nothing at all of any contra­diction between that which I maintain, and what is here objected. The Jews being conquered by Nebuchadnezzar, were become the Slaves of that Monarch, and owed him all manner of obedience, which Bondmen do to him who has saved their Lives, when it was in his power to kill them. And for the rest, the Scripture does not determine, whether the Tyrannical power they attributed to them­selves, be lawful or no. Sure it is, that an unlawful and Tyrannical Sovereign may rule legally in several respects, in which case, it imports little, to those who are subject to it, contrary to their wills, whether the Power, under which they are, be lawful in all respects or not.

Let this therefore be laid down for a certain truth, That every lawful power is necessarily limited by Laws, That these Laws are the foundation of the Government; from which the Sovereigns cannot depart, without over­turning the Society, for the subsistence of which, the Political Government was at first instituted by God.

But this is not the only kind of limitation, which may be observed in the Powers that govern Societies. As God has not prescribed any sort of Government, in preference to others, the Wisdom of Men have diversly limited the way and constitution thereof. Most People finding by Experi­ence, That Monarchy, though it have many advantages be­fore other Governments, is apt to degenerate to Arbitrary Power, thought it fitting that the greatest Lords of the Community, should concur with the King in the exercise of his Authority: others again were of Opinion, That the People ought to have the chiefest share in the Government, forasmuch as the main end of the Government is to make them happy. These different apprehensions of Men, have esta­blished the several forms of Government, the aim of those, who contrived those different forms, being only to prevent oppression and injustice, which directly cross the end of Government.

CHAP. V. Concerning the Extent of the Power of Sovereigns.

WHat I have here set down concerning the Nature of Governments, the most Absolute of which are not unbounded by the Laws of God, by the Laws which con­stitute the Right of Nations, by the fundamental Laws of the State, and more particularly by Bounds prescribed to the Authority of Sovereigns: sufficiently shews what is the just extent of Sovereign Power, and how far Men are ob­liged to yield Obedience to it. Indeed, forasmuch as Au­thority and Obedience are relative terms, which recipro­cally establish or overthrow one another, it is easie to judge, That Obedience cannot be due to Authority, but in propor­tion to the extent of the Authority.

Paternal Authority, in the manner as God had estab­lished it under the Law, could not inflict Death upon a Son, but in the presence of the Judges, and upon the hear­ing of Witnesses. The Authority of a Judge cannot be discharged, but in the due Forms of Judicature, and accord­ing to the Laws; he cannot punish a Criminal extra­judiciously, notwithstanding he might have absolute know­ledge of his Offence.

This laid down, and there is nothing more evident, it will be easie to determin, how far the Obedience of Sub­jects is engaged in the various sorts of Government under which they resort.

As to those Governments or Powers, which have no other Law but their own Will, whether at first they were raised by way of Conquest, which seems to reduce Subjects to the con­dition of Slaves; or whether from lawful Governments they have by degrees degenerated into Tyranny by the In­justice of Sovereigns, we ought naturally to distinguish between the use these Powers make of their Authority; and their abusing of it, by rendring their Authority unlaw­ful, and extending it beyond its just limits. The Captain of a company of High-way-men, that is a Father, may exact of his Son the Obedience which a Child owes his Father; but his quality of Captain of High-way-men, does not give him any right to command his Son to rob or mur­ther: And so far is the Son from being obliged to obey such kind of Commands, that he becomes Criminal by obey­ing them.

It is evident then, That in these sorts of Governments, as long as the Prince enacts Laws conformable to the fundamental Laws of the State, and that he behaves him­self as a Father of his Country, there lies a necessity upon the People of obeying him; and this necessity is founded upon their Relation to the Authority, which is just and legal, with respect to its Function and Exercise.

But we must judge otherwise, when the Question is of unjust Laws which the Power enacts for the Oppression of his Subjects: For then there seems no further necessity of obeying, to lye upon the Subjects, than what results from a desire of avoiding their own destruction, which depends on the Pleasure of the Power that oppres­seth them, which cannot settle a lawful Right on Ty­rants, other than such as a Master may have over his Slave or Bondman, according to the Laws of Servi­tude.

And as to Governments which are bounded by fun­damental Laws, it is apparent, That the Powers having no Authority at all, but according to the Laws whereby they [Page 26] are established, their Subjects are set free from obeying them, as soon as they transgress those Laws. If a King, who has no Power to make Laws, will of his alone Authority under­take to publish any, without the concurrence of those who share with him in the Legislative Power, none of his Sub­jects are obliged to obey him. If a King, who has no right to lay any Taxes on his People, undertake to charge them with Impositions, the People are not obliged to pay ought of them. If the King, who has no Power to declare War, doth do it without consent of the State, the People are not obliged to go to War.

Nothing is more visible, than that Obedience may yet more justly be refused, when Sovereigns undertake to over­throw the State, in dispensing with all the Laws, and in attempting to rule by an Arbitrary Power: whereas the fun­damental Laws of the State, which are the Bond of the So­ciety, do only allow them a limited Power.

Hitherto our New Divines agree with others, That Subjects are dispensed with from giving Obedience to an Illegal Power. But forasmuch as a State must necessarily perish, when subject to a Power that is resolved to overthrow all; the Question is, What may be expedient and lawful for People to do in this case?

There are but Two means imaginable to remedy so urging an Extremity: The one is to resist the Power that abuseth his Authority, thereby to oblige him, for time to come, to keep himself within the Bounds that are set him.

The other is to reject him altogether, and to rid them­selves of him, when there appears no probability of reducing him to the terms of Justice, and to the Rules of his Institu­tion.

'Tis against these Two Articles our New Divines op­pose themselves might and main. They conceive on [Page 27] the one hand, that though the People be not bound to obey unjust Commands, yet they never can have any Right to resist the Sovereign Power; no, not when they make use of Violence, to oblige the People to execute their wicked Designs. This is the Doctrine of Non-resistance or Passive Obedience, which has been so much agitated of late years.

And as to the other Article, they maintain the People have yet less right to cast off their Princes, or rid themselves of them, how high soever the Abuses may be they commit, in exceeding the bounds of their Authority, and how Tyrannical or Arbi­trary soever their Government may be: That Sovereign Pow­ers depend on none but God, so that the People cannot, with­out invading the Rights of the Deity, undertake to depose or punish them.

These are the Points we are to consider at present. I begin with Non-Rresistance, otherwise called Passive-Obe­dience.

CHAP. VI. Concerning Non-resistance.

THis Doctrine of Non-resistance, seems to me to be founded upon Three Suppositions, which may be easily convinc'd of Falsity.

First, These Gentlemen forge to themselves an Idea of Sovereign Powers, and ascribe certain Rights to them, which they afterwards look upon as Essential to Govern­ment, and consequently as Rights inseparable from Sove­reignty, whatsoever sort of Sovereignty it may be. Which Essential Rights, according to their account, are these: First, Not to be accountable to any but God. Secondly, To have the whole disposal of the Sword. Thirdly, To be exempt from all Coercive Power whatsoever. Fourthly, Not to be liable to suffer Resistance, on any pretext. Fifth­ly, to be invested with the Legislative Power. They con­ceive, that without these Rights a Prince is still but a Subject; and consequently, that they are all Essential to Sovereign Power, and therefore inseparable from it. Upon these Premises they with ease establish this Conclu­sion, That forasmuch as the Right of not being liable to Resistance, is inseparably annexed to Sovereignty, the People can never of Right resist their Princes on any pretext what­soever.

If we object against this their Scheme, That the Rights they attribute to Sovereignty, are such as cannot agree with a Sovereignty limited by Laws, which allow of Re­sistance, because there can be no Authority but by Law, and according to Law: Whence it follows, That it is lawful to Resist him who has no Authority.

They suppose in the Second place, That all Limitations whatsoever, do only respect the Exercise of the Sovereign Power, without being able in the least to derogate from the Essentials of Sovereignty; and that after all, these Limitations are only the Effects of the consent of Sovereigns; which pro­ceeding only from their good will, are revocable, ipso facto, as soon as it pleaseth them so to do.

The Third Supposition is this: They pretend that the Holy Scripture holds to us such a Power inherent in Sove­reigns, as can never be lawfully resisted; and that it ex­horts People to submit themselves so absolutely to it, that they never undertake to oppose themselves against its unlawful Effects otherwise than by Patience, when they are convinced in Conscience, of the Injustice of the Laws and Commands enjoyned.

'Tis an easie matter to overthrow the First of these Sup­positions.

First, I would fain know who has given these Gentlemen the Power of determining, as they do, what is Essential to Sovereignty. Do they derive these their Notions from Re­velation, or from Reason, which is common to all Men? If they say they derive the definition they give us of Sove­reignty from Revelation, they will do well to point us to the places of Scripture where this Notion is set down.

If they draw it from Reason, then I cannot but wonder that so many Statesmen and Writers of Civil Matters have fail'd of stumbling on the same Notion; and it seems to me an inextricable thing, that so many Nations should agree to reject what they approve, and to approve what they reject.

To say here, That they draw this definition from the Idea of Sovereignty, which loseth its nature when divested of these Characters, shews they are willing either to abuse themselves or others by a pitiful Equivocation. The word Sovereign imports a relation to Inferiors; and as the relation has a certain foundation, so it is likewise evident, that it hath its bounds set proportionable to its foundation. [Page] Where there is no Authority, neither is there any founda­tion for Obedience: Now there is no Authority but in pro­portion to the Laws which establish the Authority; wherefore it incontestably follows, There can be no Authority where the Law is so far from allowing any, that it opposes it.

It will never cease to be true, That the Authority is Sove­reign, though it be not so in all respects. The Consuls of Rome were Sovereign Magistrates, though the People had Power to oppose themselves against their Authority, when they abused the Power they were intrusted with, for the good of the Commonwealth. In France they give their Parliaments the Name of Sovereign Courts, though their Sen­tence be not always irrevocable.

The Second Supposition is only founded upon this Notion, That Conquerors having invaded the Liberty and Privi­leges of the People, were afterwards so kind, to restore some part thereof to them again by their Concessions; but that these Acts of Grace do not at all divest them of the Right of Acting whenever it shall please them, as if their Power was altogether Unlimited and Arbitrary. This Notion is much the same with that of the Partisans of the Court of Rome, who maintain, That the Liberties of the Gallican Church are only Acts of Grace and Favour granted to that Church; whereas the French pretend, That they are common Rights and Franchises which their Ancestors have constantly main­tained, according to what P. Pithou declares concerning them.

But indeed, to speak truly, this Supposition cannot be admitted with respect to conquered States, at least for the most part. Ordinarily a Conquest is made upon the Power that governs the State; so that the State only changes its Master, the fundamental Laws of the Land receiving no Alteration from this Change. Of this we have an Instance in England, when King William conquered it, who at his Coro­nation sware to keep the Laws of St. Edward; and his Suc­cessors were fain to swear the same. Now one of these Laws ( c. 15. T. 1. Spelm. p. 622.) imports, That a Prince that abuseth the Power he is intrusted with, does lose the Title of King: From whence it follows, That his Subjects [Page 30] need not own or obey him, and that consequently it is law­ful to resist him.

To maintain, That a King, whose Power is limited by the fundamental Laws of a State, and which he is invested with upon that condition, when at his Coronation he swears to the People, is indeed obliged to keep the said Oath, for fear of God; but that he is not at all engaged by this his Oath to the People, is rather a piece of Raillery, than Rea­soning. What, Does not the Oath the People swear to the King oblige them in Allegiance to him? and how can we then suppose that the reciprocal Oath of the King should not as well oblige him to his People? Surely, if we well weigh the case, 'tis impossible but we must discern a palpable falsity in this Opinion of Passive Obedience, in the way these Gentlemen propose it.

First, They grant a Right unto Sovereignty which is dia­metrically opposite to the end of Sovereignty, according to the Divine Destination. For the good of the Society, and its Subsistence, was God's End in insticuting of the Sovereign Power; whereas by their Hypothesis the Sovereignty may become an instrument of the utter ruin of the Society, when­soever it shall please the Sovereign; his Subjects in the mean time having no means to attain the said End, or being in any condition to hinder their being deprived of it.

Secondly, They suppose, That God in allowing a lawful Right to Sovereigns, has subjected the People to a necessity of groaning under an Illegal Right, and which God has never bestowed upon them; and for the Usurpation of which he will condemn those who do arrogate the same to themselves; which is much to the same purpose, as if I should say, That because God has established Judges, he has thereby obliged the People to suffer Robbery, when the Judges shall think fit to turn Robbers.

Thirdly, They make the condition of a Civil Society more unhappy, than was the condition of Families in the state of Nature, before Societies were formed. For the liberty of defending one's self is permitted to every one by Nature; [Page] but after the Society is once formed, it would follow, That the whole Society would be obliged, by a Principle of Con­science, to suffer their Throats to be cut by a Prince of the humour of a Nero or a Caligula.

Fourthly, They turn to meer Chymera's and Visions, what­soever the wisdom of Men have been able to find out to make States happy, by securing them against Tyranny. I speak of Laws and Oaths; the Laws are the bands and cement of the Society, and the foundation, as well as the measure of the Obedience we owe to Princes. The Oaths are the Seal of the Contract, by which the Subjects are obliged to obey them, upon condition that they govern according to Law. But all this is to no purpose, and is of no use to the People, as soon as the Tyrant thinks fit to overturn the Laws, and to m [...]ke a Scoff at his Oaths.

Forasmuch as the Third Supposition, viz. That the Scri­pture maintains Non-resistance, with regard to Sovereigns, whether they act according to or against Law, is of greater im­portance, it will be convenient to examine the same more heedfully; and the rather because Men of Abilities and Learn­ing have endeavoured strongly to assert it, and to make it pass current with others, and that with all their might.

CHAP. VII. That the Scripture doth not assert the point of Non-resistance.

FOrasmuch as the Doctrine of Non-resistance directly thwarts a natural Principle, to wit, that of our own preservation, and that of the Society whereof we are Mem­bers; we may easily judge, That in case the Scripture does assert it, we must suppose it has done it, with all possible clearness and distinction; but we do not find any such thing.

I find but one place in the Old Testament, which can be wrested to this purpose with any probability; 'tis the Description of the behaviour of a King, set down 1 Sam. 8. & 10. where the vulgar Translation interprets Mispath, by the Word Right, hoc est Jus Regis. But I am astonished how any could be mistaken in this case. For First, It ap­pears that God in that place gives us the Description of a Tyrant, and not of a King: for indeed we find nothing like to it in the Description he gives us of a King by Moses, Deut. 17. Which appears to be so, because Samuel held forth this Looking-glass to them, to make them quit their demand of having a King set over them, as the rest of the Nations about them. Secondly, It is apparent that what he saith of their crying to the Lord, when oppres­sed by their King, would have been most ridiculous, sup­posing the King to have these Rights from God, and by his Concession. When Moses tells the Jews, That they should cry unto the Lord, when they should be oppressed by their Neighbours, waging War against them, because of their forsaking of the Lord; Does he not plainly suppose, That [Page] they would do this to obtain his Protection against the injustice of those Tyrants? And can any one be supposed Fool enough to imagine, that according to God's Inten­tion it was unlawful for the Israelites to defend themselves against the Moabites, Philistims and other Nations that op­pressed them. Thirdly, It is evident that this supposed, God could not in Justice punish a Tyrant; or if he did, it would be for making use of a Right, himself had con­ferred upon him. This reason made R. Juda to oppose R. Jose, as Kimki observes upon this Text. The same is also acknowledged by the wisest of Divines. Marchat in horte Pastorum, Lib. 3. Tr. 4. Lect. 13. explains himself thus, Hoc est jus Regis, idem est ac si diceret, Haec est con­suetudo Regum: This is the Right of a King, is the same as if he had said, This is the Custom of a King, Jus Re­gum, Jus non legitimum sed usurpatum. Estius. Samuel speaks there not of a lawful Right of Kings, but of an usurped and arrogated Right, and the same is the Opinion of Cornel. à Lapid. and the Jansenists of Port Royal.

After all that has been said, it is natural to observe, That forasmuch as all the several kinds of Government, are no less founded on Divine Authority, than the King­ly, yet according to this Hypothesis, none of them would be invested with this Right so fatal to Society, but Kings only, which certainly is the worst Argument they could have lighted on, to recommend a Government, which God by his own institution, has constituted a true Ty­ranny.

The second place is that of St. Paul, Rom. 13. where the Apostle forbids resisting of the Powers, for fear we should resist the Ordinance of God. But we are to take notice, that the Apostle in that place does not in the least touch this Question, Whether it be lawful to resist the Po [...]ers, when they endeavour to overthrow the Go­vernment.

First, He considers the Powers in the lawful use of their Authority, punishing the Evil, and protecting the Good. Now it is ridiculous to suppose, that the same Priviledge that appertains to him, who makes a lawful use of his [Page 32] Authority, is every whit as applicable to him who has lost his Title by the abuse of his Power. Rex, saith St. Isidore, à recte agendo dicitur; si enim piè & justè & misericorditer agit, merito Rex appellatur; si his caruerit, non Rex, sed Ty­rannus est. A King has his name from acting right and well; for if he acts piously, justly and mercifully, he is deserved­ly called a King; but if he want these qualifications, he is no King, but a Tyrant. Addit. 2. ad capit. Carol Magn. cap. 21.

Secondly, This would suppose the Powers that act under Sovereigns to be every whit as irresistible as the Sovereigns themselves; which is an extravagant position in the sense of all Modern Divines. Besides we are to observe that So­vereigns with their Power, are only the Organical chiefs of the Society; the true head or chief is the Principality with its Members, which are the integral parts of it. This is the same that was acknowledged by Charles Mou­lin, the Prince of French Lawyers, and the great defender of the Kings of France and their Authority.

Upon this account it is that the People have right to prosecute the misdemeanours of the King's Attornies and Ministers, and to punish them; which would be strangely ridiculous, if the State were not perswaded, that all the Power they have, is a power received from the State, thô the King have the Power to elect and raise them to those Employments.

It is apparent therefore, That these words of St. Paul, only have an eye to the repugnance the Christian Jews had, to sub­mit themselves to the Dominion of Heathens. This was the Opinion of the Pharisees, who tempted Jesus Christ, upon occasion of the Tribute which the Emperor levied in Judea; Josephus shews that the Essenians opposed them in this point, and St. Paul here takes the Part of the Essenians. And indeed we do'nt find that the Christians did any way oppose the Decree of the Senate, when they declared Nero, The Enemy of all Mankind. We find also that the Christians of Tertullian's time, and those that followed after, did very well agree with the Sentiment of Hea­then Authors, about the Justice of the People's or Senate's [Page] resistance against such Tyrants; as is apparent from Lactantius de Montibus Persecutorum, and the like may be seen in Eusebius, Orosius, and in St. Augustine de Civit. Dei. But I can say more than this, viz. That the Scripture is so far from teaching the Doctrine of Non-resistance to an unjust Power, and that violates the Laws, that she repre­sents to us contrary Examples, with commendation, and sufficiently intimates that we rather sin in not resisting. For don't we see David taking up Arms to defend him­self against Saul? Don't we see him offering Achish to fight for him against Saul, notwithstanding he was his Father-in Law? Don't we see the Ten Tribes opposing themselves against Rehoboam, upon his declaring for Tyranny and Ar­bitrary Government?

Let us take the pains heedfully to consider the carri­age of the High-Priest, and his Collegues, when King Ʋzziah presumed to exercise the Functions of the Priest­hood in offering Incense, and it will plainly appear, they did not think it unlawful to resist Sovereign Authority, when it goes beyond its bounds, 2 Chron. 26.17. Azariah the High-Priest follows him with fourscore Priests, all vali­ant men, drives him out of the Temple; and after­wards he is deprived of his Government, and his Son placed on his Throne. It cannot be alledged by these Gentlemen, that this happened to him because of his Leprosie, because they suppose that a Prince cannot be resisted, whatever his behaviour may be, or devested of the right of Governing, for any reason what­soever.

After all, Let us consider how severely God punished Israel, for the sin of Saul, in breaking the Troth plighted to the Gibeonites, and we shall find they were enveloped in the punishment of his sin, because they had not opposed themselves against Saul's breach of Faith. And we make the same Reflection, about the punishment God inflicted on the People, for their consenting to David's numbring of them, which God had forbid. And why so, but because they did not oppose themselves against this enterprize of David, as they ought to have done? We [Page 33] do not fi [...]d the People engaged in the punishment of Da­vid's Adultery with Bathsheba, because indeed the People had no share in that sin. We see the inhabitants of Libna rejecting Joram, because he had forsaken the Lord his God, 2 Chron. 21.10.

Lastly, I desire that those, who talk so much of Pas­sive Obedience, would be pleased attentively to consider the behaviour of the Maccabees, when they shut the Gates of Modin against the Envoys of Antiochus, and afterwards took up Arms for the defence of their Liberty and Re­ligion, 1 Mac. 2. As also that of Matthias, who shut the Gates of Modin, in exhorting his Children to con­tinue in their resistance; and does the same at the hour of his Death, without believing that he was guilty of any sin in taking up Arms; and his Children follow his Exhortations, with an extraordinary Courage and Piety.

I own that the Books which have preserved this Histo­ry are not Canonical, no more than Josephus, who has followed them. But I must observe,

First, That it sufficiently appears, what the Opinion of the Jewish Church was in this point; who still retains an Abridgment of these Books, in her Books of Prayers, highly praising the Maccabees for their Virtue and Piety.

Secondly, That the Christian Church has allowed the publick reading of them, notwithstanding they were not Canonical, and that with great esteem too; which would have been extravagant and impious, in case the resistance of the Maccabees had been a true Re­bellion.

Thirdly, I have still more to say, viz. That the Apostle St. Paul, in the Eleventh of the Hebrews, makes an Enco­mium of the Maccabees, and approves the War they un­dertook. This is that which is acknowledged by the [Page] learned Thorndike in his Right of the Church, Page 306. by St. Chrysostome Hom. 27. in Epist. ad Hebr. and by Hay­mon Bishop of Halbarstad, as also by Menochius and Estius in their Commentaries.

Fourthly, That Lucifer de Cagliari in his Book, De non parcendo in Deum delinquentibus (a Book approved by St Atha­nasius, who calls this Lucifer a New Elias, Page 1068.) openly sets down, not only that he believed it was lawful to resist Kings, under the Old Testament, but also to put them to Death, in case of Idolatry, which he main­tains the Arrians were guilty of. Si veteris Testamenti tem­poribus vixisset (Constantius Imperator) gladio potuisset extingui, & defuncti ossa igne absumpta fuissent. If Con­stantius the Emperour had lived in the times of the Old Testament, he might have been killed with the Sword, or at least his Bones after his Death would have been burnt.

CHAP. VIII. Whether the States can deprive Sovereigns of their Authority when they abuse it.

THEY who maintain it is not in the Power of the Subject, justly to resist the Authority that is once established, though it abuse the Power committed to it. believe also consequently, That it is not lawful for a State to reject their Sovereign, nor to deprive him of his Authority, though he make use of it, to over­throw the Government: but forasmuch as the former Opinion is wholly contrary to all good Sense, and Justice; the lesser cannot be less so. I own it is un­just to deprive a Sovereign of the Power he enjoys, as long as he useth it lawfully: and in this regard it is, we must not attempt any thing against the Au­thority of Kings, or other Sovereign Magistrates. I acknowledge also that the People may not rise up against their Superiors, for the first Fault they com­mit, in matter of Government, Kings being no more infallible than other Men; we cannot with justice ex­pect from them, that they should commit no faults at all in their managing of the Government.

It is also evident enough that the People must not oppose themselves against every thing that seems to have some air of severity or hard usage in the Government; as St. Paul also orders Servants to suffer patiently the hard usage of a too severe Master. Good sense alone is sufficient to inform People, That they must not expose the publick Tranquillity to danger, for some severity, [Page] or for some interest which respects only some particular persons. And indeed with this respect we may say that private persons are obliged to sacrifice their particular interest, to the publick Good and Peace. But there is a vast difference between a King, that governs justly, or that falls into some error, which he is willing to retract and amend upon a remonstrance from his Sub­jects; and a Tyrant who overturns the Laws of the State, and the end of the Government designedly and of deliberate purpose. It would be a strange delu­sion for us to attribute to a Tyrant the Priviledges of a King; or to suppose, as otherwise we must, That there is no means to distinguish them; both which Extreams are equally ridiculous. For,

First, All wise Men that ever were, have declared, That it is easie to know the difference between a King and a Tyrant. Aristotle gives us an exact Idea of a Ty­rant, Polit. lib. 4. cap. 10. Pol. 6. Hist. lib. 5. gives us the Character of a Tyrant, in opposition to that of a King. Synesius also gives us a very lively Portraiture of one de Reigno. Isidorus gives us this description of Tyrants, Origin, lib. 9. cap. 3. Jam postea in usum accidit Ty­rannos vocari pessimos atque improbos Reges luxuriosae Do­minationis cupiditatem, & crudelissimam Dominationem in Po­pulis exercentes; Now it is become customary to call bad and wicked Kings Tyrants, who are ambitious of Arbitrary Power, and oppress their Subjects by a most cruel Dominion. A King (saith the Scholiast of Ari­stophanes) differs from a Tyrant, in that a King possesseth his Kingdom, certis sumens conditionibus, [...], receiving it on certain conditions; whereas a Tyrant enters upon it by force and violence. Bartholus, among the Lawyers, gives us a Description of a Ty­rant, and the Characters wherewith he sets him forth are infinitely different from those that ought to be in every King. Wherefore we cannot imagin, that the difference between a King and a Tyrant should be none at all, or im­perceptible.

Secondly, Heathens as well as Christians, Papists as well as Protestants equally agree, That it is lawful for a State to rid themselves of a Tyrant, by wholly casting him off.

This is a constant Maxim among Heathens, whereof we may see the Proofs in Thucydides, lib.— in Pau­sanias in Attic. in Polyb. lib 2. in Cicero, lib. 3. de Offic. & Orat. pro Milone, & lib. 2. de Invent. in Seneca, lib. 2. de Benefic. cap. 20. in Seneca the Tragedian, in Hercule Furente; in Pliny, lib. 3 [...]. cap. 4. in Valerius Maximus, lib. 2. cap. 10. in Plutarch. in vita B uti, and in Themistius Orat. 14.

The Jews have reduced this Maxim into practice, as we may see in the History of the Maccabees, who took up Arms against the Authority of Antiochus Epi­phanes.

As for Christians, we find this Sentiment confirmed by Lucifer de Cagliari, and approved by St. Athanasius. We find that St. Austin August. libro contra Adim. c. 17. Nec ta­men hoc sece­runt justi ho­mines, nisi au­thoritate di­vina, ne quis arbitretur pas­sim sibi esse permissum ne­care quem ve­lit, aut judicio persequi aut poenis quihussi­bet afficere. Aliquando au­tem aperte ponitur in scripturis ipsa divina authoritas, aliquando autem occultatur, ut & manifestis lector instruatur, & exerce [...]tur obscuris. Certè inimicum & persecutorem suum, nimis ingratum & nimis infestum Saul Regem accepit David in potestatem ut ei faceret quod vellet, & elegit parere potius quam occidere. Non enim erat jussus occidere, sed neque prohibitus, imo etiam divinitus audierat se impune facere quicquid vellet inimico, & tamen tantam potestatem ad mansuetudinem contulit. Dicatur mihi quem timuit, cum interficere noluit? Nec hominem possumus, dicere timuisse quem acceperat in potestatem, nec Deum qui dederat. Ʋbi ergo nec difficultas fuit occidendi nec timor, dilectio profuit inimico. Ecce David ille bellatur implevit praeceptum Christi quod accepimus, ut diligamus inimicos. maintains against Adimant, cap 17. That though David did not kill Saul, yet he had right to do it. Brontius agrees with this Judg­ment of St. Austin. And Sozomenus, lib. 6. proves, That if the Roman Soldier, who was suspected to have killed Julian the Apostate, had done it indeed, that he had done it justly and of right. We find the same thing asserted by Englishmen, as by Joannes Sarisbur. Polycrat. de nug. curial, lib. 7. cap. 17, 18, 19; by Matthew Puris ad An. 1233, in the business of the Bishop of Win­chester.

The Church of Rome has always been of this Opi­nion, before the Reformation, as appears by the Judge­ment of Thomas Aquinas 22. qu. 24. art. 2. of Aureolus and all the Schoolmen. In a word, we can affirm, That this was received as an indubitable Opinion, in the Council of Basil, who laid it down as a Principle, whereupon they grounded their right of Deposing the Pope.

This has always been the Opinion of Popish Lawyers and Canonists, as we may see in L. decerminus de Sa­crosanct. Eccles. in Bartholus, in tractatu de Tyrannia: in Paris de Puteo: in Syndic. where he puts the Question, Whether it be lawful to kill a King that is a Tyrant. In Andreas Iserus institut. quae sint Regalia. In Mar. Lau­dun. in tractatu de Princip. §. 3. in Angelus de Clavasio in Summa voce, Seditio. Quaest. ultima, in St. Antonin. in summa 2. par. tit. 4. c. 8. §. 1.

Neither do the Protestants differ from them in this point, as is evident from the Writings of Zuinglius, Luther, Calvin, Paraeus, Bilson, Abbot, &c. Conringius lays it down as an indubitable truth, ad Lampadium de Imp. Rom. 119.

And the Papists since the Reformation are of the same judgement, as will appear, if we consult Gregor. de Valentia, Tit. 3. disp. 5. qu. 6. Tolet. in summa l. 5. c. 8. Mariana de Rege Lib. 1. Cap. 3. & 6. Lessius de Jure & Justitia Lib. 2. cap. 9. dub. 4. Molina tr. 3. disp. 6. de Justitia & jure. Eman. sa in Aphor. verbo Tyran­nus. Suarez in defens. fidei, lib. 6. cap. 4.

Neither let any one imagine, That this is only a Doctrine of the Jesuites: We may see the contrary, in those who have written concerning the Deposition of Henry the Third, and who have maintained the Justice of that Deposition. And we may affirm, That among [Page 36] so many French Authors, who have writ against Baro­nius and Bellarmine, who attribute the Deposing of Childeric to Pope Zachary, and the placing Pepin on the Throne in his stead, there is scarce any to be found, who whilest they dispute the Pope's Right to Depose Kings, do not acknowledge, That it is a Right inhe­rent in the States of the Kingdom.

And indeed to weigh the thing in it self, it is evident, That when a Prince is become the Enemy of his Peo­ple, and endeavours to destroy them, he thereby loseth the Right of Governing them. If we take the Sword out of the hand of a Madman, that he may do no hurt with it; who doubts but we have the same right to take away that Power from a Prince, which he makes use of, as if he were a Madman.

The History of Portugal fully sets forth to us the Judgement of that Nation, with respect to King Al­phonsus III. This Prince minding nothing but hunting, his Council represented to him, That if he did not apply himself to the business of State, they would Depose him, and place another on the Thone. What would not they have said, think we, had they seen him Murthering his Subjects in cold Blood, as their last King, whom they banished, because of a like madness.

I acknowledge, That the Commonwealth has put its rights into the hands of the Prince, by which she seems to have deprived her self of that Power. But it is a strange and uncouth imagination to suppose, that a State should deprive it self of the right of resisting injustice and violence, which is a right, that Nature communicates to every Creature together with its Being. Besides it is certain, That if a State be limited by Laws, and that the People are the Authors of them; so that they share and exercise the Sovereign Power, in this case they are naturally supposed to possess and hold the [Page] Authority, which is necessary to preserves the Right that belongs to them.

Let Men Philosophise as long as they please, they shall never be able to make out, either that a Prince can pretend to a Power of destroying the Society, without any danger of being called to an account for it; or that a People can ever be esteemed to have granted him a Right, tending to their own Ruine and Destruction.

But some may say, That the Title of a King, ought to secure a Tyrant against any resistance, he might be liable to from his Subjects; even as the name of a Fa­ther is a Title that puts Children out of a Condition of setting themselves against him, whose cruelty they have experience of. But besides that, there is a great deal of difference between these two Titles, which is the ground of the difference there is between the Subjects and a King, and the Children and a Father; is it not notorious, and practised every day, that a Father who is become the Enemy of his Children, is deprived of the admi­nistration of his Goods, and of the disposal of his Children; which practice being grounded on the Law of Nature, doth not in the least violate the order of the Society.

Moreover it is certain that a Title, how venerable so ever it may be, cannot secure him that bears it, from the resistance of those that are oppressed by him. Let us conceive a Physician, that has a design to Poison his Patient; the Title of a Physician which has induced his Patient to commit the care of his Health to his trust, can it hinder the Patient from prosecuting him as a Murtherer, in case he resolv'd to take away his Patients Life, instead of contributing to his Cure.

We know that Divines look upon the Government of the Church, as a Government instituted by God, and immediately instituted by him: and yet who knows not, that they have de­posed the Pope, Bishops and Popish Priests, by withdrawing themselves from their Dominion, and that upon this Ground, that tho there be something lawful in their Ministry, yet they oppose themselves to the end of their Ministry, by reason of the Tyranny which they exercised over their Consciences.

But some may imagine, that because God has not expresly given this Right to People to cast off their Kings when turn'd Tyrants, and that he has thought it sufficient to recommend Obedience to them, he has thereby authorized all their unjust Proceedings and Violence, without leaving any means to the People of opposing themselves against their Oppression by de­posing them. This is a meer Delusion; and to see through it, we need only consider God's Silence concerning the irregular comportment of the High Priest, who notwithstanding was subject to the same Punishments, as were the meanest Levites, in case of his violating the Rules of his Institution, and trans­gressing the Laws which God had given to all the People of Is­rael, and to the Priests in particular. Indeed, it was not need­ful that God should prescribe any such thing to the People, because Nature alone is sufficient to teach People aright they are possessed of, by giving their Consent to the Elevation of the Powers that govern them. In a word, I say, that God had suf­ficiently intimated to the Israelites, that they could not lawful­ly be oppressed, in that he had expresly forbid their Kings to heap up vast Riches, or to multiply the Number of their Ca­valry, which the Kings could not do without violating the Law of God, and without drawing upon themselves the Resistance and Opposition of their Subjects; as Josephus very well infers, who maintains, Lib. 4. cap. 8. ‘That the People ought of Du­ty to oppose themselves against a Prince, who transgress'd the Bounds God had prescribed to him in the 17th of Deutero­nomy.’

But this Point leads us insensibly to consider more particular­ly, what kind of Royalty it was, that obtained amongst the Jews, which deserves carefully to be examined. This I intend next to consider, and afterwards shall proceed to take a view what was the Law of Royalty among the Romans; and shall [Page 38] make it appear, that the Kingdoms of Europe, which have been formed out of the Ruins of the Roman Empire, have neither followed the one nor the other of these Models, tho some Di­vines have asserted it without respect to Truth.

CHAP. IX. Concerning Regal Dignity, and the Rights belonging to it amongst the Jews.

I Am to make out four Things in order to the clearing of the Character of Royalty, which obtain'd amongst the Jews.

The first is, to enquire, whether it was immediately establish­ed by God?

2ly, To shew, that it was limited according to the Descrip­tion we have of it in the 17th of Deuteronomy.

3ly, To evince solidly, that all that Samuel declared concern­ing the Right of Kings, was only a Prophecy about the Tyran­ny of Kings, and not the Right of Royalty.

4ly, To make it appear, that supposing that of Samuel's, to be a Description of a Lawful Right, yet that particular Settle­ment could not be of any Consequence to those Estates that had another Institution.

For the first, I say, that the Institution of some Magistrates amongst the Jews, was by express and immediate Revelation from God: Moses his Ministry and Authority was established and confirmed by miraculous Signs and Tokens, as appears Exod. 3. And for the Judges of the People of Israel, as may be seen in the 18th Chapter of the same Book; But we find no­thing like this, in the establishment of the Kingly Authority a­mongst them. For we do not find that God, in the 17th Chap­ter of Deuteronomy, enjoins the People to establish a King over them, as the Jews themselves believe; but only that he fore­saw the disorderly Inclinations of the People, who in Time to come would demand a King to rule over them, in conformity to those of their Neighbour Nations. A demonstrative Proof of what I say is, because that God himself having declared himself [Page 39] solemnly to be their King, in giving them Laws, in leading their Armies, &c. they could not reject him without committing a great Sin. This is that which Gideon was very sensible of, as appears by his absolute refusal of the Royal Dignity. The same thing may also be gathered from the words of Samuel, 1 Sam. 8. and of God himself.

I own indeed, that when the People shewed themselves obsti­nately resolv'd to have a King, there happened something of an immediate designation of Saul to that Dignity, as may be seen 1 Sam. 10. for the Election was made by casting of Lots in the presence of Samuel, to shew that the appointment of Saul was immediately from God. But for all this it continues a great Truth, That the establishment of the Royal Power in Israel was an Act of the People, and not an immediate Act of the Deity. And we ought to give the more heed to what was immediate in the Institution, because it is the Foundation of many particular Expressions we find in Scripture; when it is said of the Judges of Israel, Deut. 1.17. That their Judgment was God's Judg­ment; That they are Gods, Exod. 21.16. & 22.8, 9, 28. Psal. 82.1. John 10.35. That God is with them in their Judgment, 1 Chron. 19.6. All those Expressio [...]s refer to their immediate Divine Institution. When the Scripture, speaking of the Kings of Judea, saith, That Solomon sat upon the Throne of God, 1 Chron. 29.23. that is to say, that God had placed him on the Throne of Israel, which God himself was possest of, till their demanding a King of Samuel, 2 Chron. 9.8. When it calls them the Kings of God, 1 Sam. Psal. 18.50. and his Anointed Ones, 2 Sam. 22.51. which Title is given to Saul, as well as David and Josiah; all those Expressions respect God's Establishment of Kings, after that the People had earnestly and obstinately de­manded to be govern'd by their Ministry.

As to the second Head which respects the Laws that God prescribes to the Jews, to regulate the Choice, and the Conduct of their future Kings, set down by Moses, in Deut. 17. v. 14, 15, 16, 17, 18, 19, 20.

We may therein observe these two things.

1st. That God supposeth, that forasmuch as they would some time after set up a King over them, they would also suppose it lawful for them, to prescribe to the Royal Power, the Form [Page 40] and Rules which their Neighbour-Nations, amongst themselves, had set to that Form of Government.

2ly, That God leaving to the People the natural Right of limiting the Royalty amongst themselves, according to their own liking and fancy, or for giving it more scope and liberty, as their Neighbours had done, only thought good to prescribe to them these Rules and Limitations. 1. God limits their choice as to the Person of a King, that he must be one chosen by himself. 2. They might not choose a Stranger. 3. He do's not allow the King to multiply Horses; 4. Nor to lead back the People to Egypt; 5. Nor to have great store of Wives; 6. Nor to heap up vast Riches. 7. He enjoyns him to study the Law of God, and have it always with him to observe and keep it. And, 8. To do Justice equally to all without distinction.

These are the Laws which Josephus hath compendiously set down, Lib. 4. cap. 8. p. 123, after Philo, in his Treatise, con­cerning the Creation of the Prince.

Now it is natural and obvious, to conclude from all this; 1. That God doth not in that place proscribe a plat-form of a Mo­narchy for the Government of the Jews; but only supposeth that the Jews, being desirous of Monarchy, would be apt to borrow the Model of it from the Neighbour-Kingdoms. 2. That in prescribing some Rules concerning the choice and be­haviour of a King, he endeavors to prevent the State of Israel from falling into the Inconveniences, into which their Neigh­bour-Nations had cast themselves, by allowing their Kings, or at least suffering them to take too great a Power and Authority, whether in Matters of State or Religion. 3. That he suppo­seth, that the People ought to oblige the King to observe these Laws of God, and that they might oppose themselves to Prin­ces, who at any time should have the boldness to violate them; as Josephus expresseth himself in the place quoted before. 4. That he allows the People of Israel the same Rights to oppose themselves against the unjust Enterprizes of their Princes, turn'd Tyrants, which other Nations were possest of against their Princes, when they abused their Authority: the Reason why People desire a King, being, that he may Judg and Govern them, not that he should Destroy them by playing the Tyrant.

It is of importance to make these Observations, because it appears that in all this God did so far accommodate himself to [Page 41] the Design of the Jews, that he never pretended to carry his Laws any farther: for we see he does not speak to them con­cerning the Manner how they ought to behave themselves, when they should be attak'd or subjugated by Foreign Powers, as sup­posing that common sense would be sufficient to instruct them, that in those Cases they were to follow the Example of other Nations, who bore patiently the Yoke of the Prince that con­quer'd them.

These things thus laid down, it clearly appears, that God set Bounds to the Royal Power, long before he established any King in Israel, and that the Jews could not but believe, that Kings had another Law set them than that of their own Wills.

Indeed we see, 1st, That this Institution did not at all de­rogate from the Rights of the People, to choose their own Kings, under certain Conditions, and by a form of Treaty, Compact, or Capitulation. We find that the Election of Jephtha, Judg. 11.10. clearly supposeth this, as likewise after­ward the same may be seen in the Election of Saul, David and Solomon, 1 Chron. 28.8. and 1 Chron. 29.24. We find that Ishbo­sheth was brought into the Camp by Abner, only to show him to the People, that they might consent to the choice of him, 2 Kings 2.9.

2ly, Though this Institution seem to be immediate, yet did it not at all hinder or prejudg the Peoples Right of making Treaties and Capitulations with their Prince, and consequently of rejecting them, when at any time they should invade or vio­late the said Rights and Capitulations. And of this we have an illustrious Example in the Sons of Samuel, whose ill admini­stration gave the Jews an occasion to demand a King, by which means Samuel himself was, as we may say, obliged to renounce his Power as Judg, which notwithstanding he had received immediately from God himself.

3ly, How immediate soever the Kings of Juda may have been established by God, yet they never had the Character of an Arbitrary and unbounded Power, as is suppos'd by those, who would infer, that because Monarchy was instituted by God, the Power of him that is invested with it cannot be justly limited, neither can, for any Misdemeanour whatsoever, be deposed.

To make it more sensible and evident, we need only take no­tice of what the Scripture tells us in several places.

[Page 42]1st. They could not alienate the Lands and Countries that belonged to the State, to any Strangers, neither could they take them from their Subjects by way of Truck or Exchange, as ap­pears from that History of Naboth, 1 Kings 21.

2ly. They could not invade the Sacerdotal Functions, as is apparent from the History of Ʋzzia, who was boldly and cou­ragiously resisted by the High Priest Azaria and his Colleagues, 2 Chron. 26.18.

3. They could not constrain the Levites to go to War; that Tribe being excepted from all the rest, who were subject to that Service, as Abulensis owns it, 1 Kings 9.22.

4. They could impose no Tributes but in case of Necessity, and with the consent of the People; and those who have under­taken to do otherwise, have been censured therefore by the Pro­phet, Mic. 3.1. Not to mention, that the excessive Tributes Solomon imposed on the People, were the cause of the ten Tribes shaking off Rehoboam's Yoke, 1 Kings 12.3.

4ly. I say that though God had seemed, to fix the Royal Dig­nity to one Family, to wit, that of David, yet was it not so bound up, that the Succession must always pass from the Fa­ther to the eldest Son, and not to the younger. Thus we see that Solomon was preferred to Adonijah by David, by the consent of the People. Thus Rehoboam designed to settle the Succession upon Abijah the Son of Maachah, as thinking him most fit for Government, though he had elder Brothers, 2 Chron. 11.22. Jehoshaphat on the contrary preferred Jehoram to the Succession before all his other Sons, because he was his First-born, 2 Chron. 21.3.

All which evidently proves that both Kings and People, sup­posed themselves to have right, from the Divine Graunt or Con­cession for the Establishment of Kings, to regulate the Rights of Royalty, and the Questions depending thereon, according to the Maxims of Political Prudence, and the Rights of Nations.

Neither do we find that Samuel grounds his Discourse on any other Principles, or that he supposes that Kings ought to be in­vested with a boundless Power, as some imprudently do ima­gine. See in what manner he expresseth himself, to diswade the Jews from their importunate Demand to have him settle a King over them, 1 Sam. 8.1, 2, 3, 4, 5, to the end. And it came to pass, that when Samuel was old, that he made his Sons [Page 43] Judges over Israel. But his Sons walked not in his ways, but turned aside after Lucre, and took Bribes, and preverted Judgment. Then all the Elders of Israel assembled themselves together, and came to Samu­el unto Ramah, and said unto him, Behold, thou art old, and thy Sons walk not in thy ways; now therefore make us a King to judg us like other Nations. But the thing displeased Samuel, when they said, Give us a King to judg us. And Samuel prayed unto the Lord, and the Lord said unto Samuel, Hearken unto the Voice of the People, in all that they say unto thee; for they have not rejected thee, but they have rejected me, that I should not reign over them. According to all the Works which they have done, since the day that I brought them up out of Egypt, even unto this day, wherewith they have forsaken me, and served other Gods, so do they also unto thee. Now therefore hearken unto their Voice, howbeit protest solemnly unto them, and shew to them the manner of the King that shall reign over them. And Sa­muel told all the Words of the Lord unto the People that asked of him a King; and he said, This will be the manner of the King that shall reign over you, he will take your Sons, and appoint them for himself, for his Chariots, and to be his Horsemen, and some shall run before his Chariot; and he will appoint him Captains over thousands, and Cap­tains over Fifities, and will set them to ear his Ground, and to reap his Harvest, and to make his Instruments of War, and Instruments of his Chariots; and he will take your Daughters to be his Confectioners, and to be his Cooks and Bakers. And he will take your Fields and your Vine-yards, and your Olive-Yards, even the best of them, and give them to his Servants. And he will take the tenth of your Seed, and of your Vineyards, to bestow it upon his Officers and his Servants. And he will take your Men-Servants and your Maid-Servants, and the goodliest of your young Men, and your Asses, and put them to his Work. He will take the tenth of your Sheep, and ye shall be his Ser­vants: And ye shall cry out in that Day because of your King, which ye shall have chosen you, and the Lord will not hear you in that Day. Nevertheless the People refused to obey the Voice of Samuel; and they said, Nay, but we will have a King over us, that we also may be like all the Nations, and that our King may judg us, and go out before us, and fight our Battels. And Samuel heard all the Words of the People, and he rehearsed them in the Ears of the Lord. And the Lord said unto Samuel, Hearken unto their Voice, and make them a King: and Samuel said unto the Men of Israel, Go ye every Man unto his City.

'Tis obvious to observe from this account: 1st. That the In­justice and Miscarriage of Samuel's Sons was the cause why the Jews demanded a King to be set over them.

2ly. That their Demand is couch'd in those terms, that make it evident, they desired to be governed after the manner of their Neighbour-Nations. 3ly. That this their Demand was displeasing to Samuel. 4ly. That God look'd upon it as a Contempt of himself, and a casting off of his Authority, for the Reasons before alledged. 5ly. That God strictly enjoyns Samuel to protest and declare unto them, how they must expect to be treated by the Kings that should reign over them. 6ly. That Samuel in this his Declaration delineates to them the compleat Pourtraiture of a Tyrant rather than of a King, to affright the People from the Demand they had made; and that as a Prophet he foretells the things should happen to them un­der the Government of their Kings. 7ly. That he represents to them the Miseries annex'd to Royalty, as their Bondage in Egypt, and the several other Servitudes, which had forced them to cry unto God, but denounces to them, that God, to punish them for this their Rebellion against him, and their Contempt of his Administration, would not hear them. 8ly. That the People dazled with the Lustre of Royalty, and the Advantages they thence promised to themselves; in time of War, notwith­standing this Remonstrance, persevered in their Demand. 9ly. That finally therefore God commands Samuel to give way to their Request, and to set a King over them according to their Desire.

This in short is the sense, which Josephus gives of this Histo­ry. Antiq. lib. c. 4. From whence it is evident, that the Synagogue never be­lieved that God had granted to the Kings of Judea, any of those Tyrannical Rights, which some would appropriate to Kings from these Words, Hoc est jus Regis.

Josephus makes out, that what is said, 1 Sam. 10.25. that Samuel wrote the Right (or rather the Manners and Behaviour) of a King in a Book, and laid it up before the Lord, was done by him for this end, that the People for time to come might know, that he, as a Prophet, had, in this his description of the Manners of a King, Ibid. cap. 5. foretold them all the Calamities and Miseries that would overtake them under a Monarchy, chang'd into Tyran­ny, that thereby they might be induc'd to Acknowledge their [Page 45] unthankfulness towards God, and their Folly in being so earnest for a King, as often as they should cast their Eyes on this his Prophecy.

I know that some to assert the unbounded Power of Mo­narchs, have endeavoured to prove from these Words of the vulgar Latin Translation, hoc est jus Regis, that the Monarchi­cal Government amongst the Jews was of this Nature, and that therefore Samuel does not represent the Kings here as subject to any Laws or Punishments, which it seems he consequently ought to have done, after that he had declared their Conduct and Behaviour, as absolutely contrary to the Rights of the Society.

But as I have already before observed, never was so weak a Foundation made use of, whereon to raise such vast Preten­sions as may be easily made out so as to convince those, who make use of an improper Translation, both to delude them­selves, and to abuse others, about a Question which is of so great Importance to the Society.

Now that Samuel had not any the least Design to appropriate an unbounded Power to the Kings of Israel, 1 Sam. 8. by these Words, hoc est jus Regis, appears 1st. Because the word Mis­path ordinarily signifies, consuetudo, agendi ratio, a custom, manner or way of acting, in case we do not explain this word in the same sense it carries in the 2d. chap. of the same Book, ver. 13. we shall make this passage to contradict Deut. 17. which cannot be otherwise avoided. This is acknowledged by Learned Men, who therein agree with Schickardus de jure He­braeorum, Cap. 2. Thess. 7. p. 65.

2ly. The Fathers are of the same opinion; see what Beda saith in his Exposition upon Samuel, Lib. 2. Hoc erit jus Regis, qui imperaturus est vobis. Non qualis esse debeat, moderatus & justus Imperator, exposuit, cujus & in plerisque Scripturae sacrae lo­cis, & maxime in Deuteronomio, perfectio docetur, sed potius Rector improbus, qui austeritate, subjectos sit oppressurus, intimat, ut per hoc populum a pertinaci ejus petitione revocet. This will be the Be­haviour of the King that shall rule over you. He doth not s [...]t forth the Qualifications of a moderate and just Ruler, who is fully represented to us in many places of Scripture, but espe­cially in Deuteronomy, but rather those of a wicked Gover­nour, who by his Cruelty should oppress his Subjects, that [Page 46] thereby he might deter them, [...]om their obstinate demanding of him.

3. The Divines that did not understand Hebrew, yet by good sense and Reason were led to the true meaning of this word. Gerson lays it down as a certain Truth, that this word does not express a lawful Right, but an unjust Power. Dictio haec [Jus] non significat semper Jurisdictionem, sive Justitiam, sed significat interdum Potestatem quae non est justa, &c. sicut haec dictio Rex, quandoque sumitur pro Tyranno, & Benedictio, pro maledictione, & Lex injustitiae, pro injustitiae execratione, & Deus pro Diabolo. This word [Jus] doth not always signifie Right or Justice; but sometimes an unjust Power, &c. even as also the word King, is sometimes taken for a Tyrant, and Blessing for Cursing, and the law of unrighteousness, for the execrable unrighteousness, and God for the Devil. Opusc. contr. Adulator. Princip. in Consid. 8.

The same also was the Judgment of Claudius Espenseus a famous Divine of the Romish Church, who told Henry II of France: Your Majesty ought to abhor that Right nothing less than Regal, and nothing more than Tyrannical, which God by the mouth of Samuel did not allow the King, but wherewith he threatned the People, saying, Hoc erit Jus Regis, this will be the Right of a King. Treatise of the Institution of a Prince Ch. 8.

4. It appears evidently that Samuel represents to us the picture of a Tyrant, in opposition to the description of a King, God had set down in the 17 chap. of Deuteronomy.

5. The Jews of old have always owned as much, as appears from Josephus, Lib. 4. cap. 8.

6. It appears that those who conceive the matter otherwise, suppose a greater Power and Authority in Princes, than they ascribe to God himself, who never commands any Thing but what is reasonable and just; as St. Paul judged, who calls all the Duty we owe to God, a Reasonable Service, Rom. 12.

7. If any one will take the pains to read the Characters Solo­mon has given of a King, in divers places of the Proverbs, he shall find that nothing can be more opposite to this Idea of an un­bounded Power, which some would gather from these words of Samuel.

8. The Kings of Israel never enjoyed any such Power, or ever pretended to it: the History of Naboth, whose Vineyard [Page 47] King Ahab greatly desired, is a proof hereof beyond all excep­tion. 1. Kings ch. 21. Jezebel would never have been put to the trouble, to employ false Witnesses to destroy Naboth as a Blasphemer, if she had had in Israel some of those Divines, Flatterers of the Grandeur of Princes, who abuse the Holy Scrip­ture to authorize all the injustice and oppression they are guilty of. I am sure it is impossible to read without astonishment the extravagance of some Divines, who conceive that the words of Samuel contain an Explication of the Rights of Royalty, and that Samuel wrote them in a Book as being the publick and in­contestable Rights of Monarchy.

Withal let us make this Reflection which is very natural: The Jews here complain of the injustice and violence of Samuel's Sons, who made a mock of the Laws; whereupon 'tis supposed that they to remedy this mischief, require of Samuel to set a King over them, that might govern them according to his own Fancy, and treat them like Slaves: Is there any thing of sense in the Supposition? We suppose that the King has already a Rule prescrib'd him in the 17 of Deuteronomy, and at the same Time we maintain that Samuel a Prophet, has in a publick Re­cord set down the Description of a Tyrant, to whom God gives Right, to violate all the Rules he had prescribed in his Law. Sure it is that neither the Antient nor Modern Jews, did ever conceive any such thing. If we read Josephus, where he sets down an abridgment of the 17 of Deuteronomy, we shall find that he expresly asserts, that it was not only the Right, but also the Duty of the People to oppose themselves against their Designs in case they violate the Rules of the Royalty God had prescribed them. Let us consider the carriage of the Maccabees against Antiochus, and we shall find that they did not believe it unlawful to resist Tyrants, and to oppose themselves to their destructive Government.

Let any one read the 14 of the first Book of the Maccabees, and he will see whether the Rights of the King, which at that Time were engraven on Brass, had any resemblance with what we find in the 8th chap. of Samuel. This is a sure way to judge whether the Jews ever pretended that God, by these words of Sa­muel, had granted to Kings an unlimited Power. They to this day acknowledg, that the Scripture does not only prescribe Moral Laws, which their Kings could not violate; but also [Page 48] positive Laws, to which they were obnoxious, and which they could not transgress, without submitting themselves to the same punishments with the rest of their Subjects. This is the common opinion of the Jews, as we may see in Maimonides de Regibus Cap. 3. Sect. 4. and in the treatise of the Sanhedrim cap. 19. num. 166, 167, 168. which Doctrine he borrowed from the Talmud cap. Cohen Gadol, and from Siphri upon the Parasche Scho­phetim.

2ly, They hold that if the King did change the form of Go­vernment into Tyranny, the People had Right to reject him. The History of Rehoboam rejected by the ten Tribes, is a proof hereof beyond exception.

3ly, They hold that the People suppos'd themselves to have Right, and that it was their Duty to reject Athaliah, who tho she was a Woman, yet had invaded the Throne, 2 Kings 11 ch. ver. 3. which the Jews pretend to be contrary to the Law set down in the 17 of Deuteronomy.

4ly, They declare that King Herod appeared as a Criminal and indicted Person before the Sanhedrim, tho they mistake themselves in the story related by Josephus lib. 14. cap. 17. Antiq. whence it appears that he was only Vice-Roy.

I acknowledge that Casaubon, Exercit. 13. §. 3. (from whence Bishop Ʋsher seems to have taken it) maintains, that the Jews believe, That no Creature can judge the King but God alone; and to this purpose quotes a passage out of Midrasch Devarim Rabba in Shophetim: but it is now 64 Years since Schickard has observed Casaubon's mistake, in handling a matter he did not un­derstand; for indeed the Jewish Maxims are directly opposite to it. 1st. In the place by him cited, we find a Gloss, which shews that that passage did not concern the Kings of Judah, but those of Israel, who by their Power had changed the Govern­ment into Tyranny. Schickard de Jure Regio, pag. 63, 64. and trampled under Feet the Laws of God, which made them ob­noxious to punishment. 2ly, We must observe that the Jews believ'd, that the Maxime never took place, but a little before the last extirpation of their States, upon occasion of one of their last Kings named Jamneus, Gemar in cap. 2 Sanhedrim.

I own that Samuel doth not set down any express Law for the deposing of Kings, or punishing of them when turn'd Tyrants: but yet he supposed as a thing certain and evident, 1st. That [Page 49] their Crimes being contrary to the Law, were punishable accord­ing to the general Definitions of the Law against Idolaters and other Criminals: We don't find that God has spoken any thing in particular neither concerning the High-Priest, from whence the Papists falsly conclude, That he was exempt from Punish­ment, tho he did transgress the Law. 2ly, I say that tho the Execution of those Laws was not committed to Inferiour Magi­strates, yet did it of right belong to the publick, according to the natural Dictates of common Sense.

But after all, whatsoever Idea we may frame of the Jewish Monarchy, I maintain that it cannot be of any consequence to other States. 1st. Because that State was formed immediately by God, for particular Ends which do not respect other Socie­ties. God might, by Example, grant to the Family of David, which he had a mind to distinguish from others, some Preroga­tives, which he had no design to communicate to other So­veraigns. 2ly, Because it is false that God has granted any par­ticular Right to the Kings of Israel, contenting himself to give way to the Peoples desire, who would be govern'd by a King like their Neighbours. 3ly, Because whatever the Rights of Royalty may have been amongst the Jews, it is certain they have been abolished by an Order of Providence, which has wholly destroy'd the State of the Jews, and the Rights of their Kings. We don't find that Jesus Christ obliged his Followers to regulate their Obedience to Soveraigns, according to the measure of O­bedience the Jews rendred to their Kings. 4ly, Neither do we see, that the Jews since their dispersion did ever take part with Tyrants, when the States where they lived rejected them, or that they thought themselves oblig'd thereto by the Law. 5ly, We should be forced to suppose that all the Christian States, and all the Bishops and Pastors in the Churches and States with­out the Roman Empire, had been pitifully mistaken in not fol­lowing or recommending this Judaical Form of Despotical Royalty, and purely Tyrannical, described by Samuel, which is so strangely extravagant, that it is unworthy to insist on the re­futation of it.

CHAP. X. Concerning the Royal Law in favour of the Roman Emperors.

'TIS a difficult thing to understand the Nature of the We­stern Governments, without being acquainted with the Nature of the Government of the Roman Emperors, of that Empire, whose Ruin has been the rise of most of the Western Monarchies. Now it is certain, that as Contraries serve to il­lustrate one another, so the opposition which is found between the Constitution of those Kingdoms, and that of the Roman Empire will afford us a clear sight of the Characters which di­stinguish them.

We must know then, that in the Year 729. of the City of Rome, Dion. lib. 53. Tacit. annal. lib. 2. Augustus and Norbanus being Consuls, Lata est Lex Regia, quâ summa & Regia Potestas, quam sibi Populus Romanus ab ejectis Regibus sumpserat, in unum Principem translata est, ita ut is, nulla Legis necessitate teneretur, omnique jure scripto solutus esset; ei verò parerent omnes. The Royal Law was enacted, whereby the Sovereign and Kingly Power which the People of Rome, ever since their rejecting of the Kings, had taken to themselves, was transfer'd upon the Prince alone; so that he was not bound to the Law at all, and was exempted from all written Constitu­tions, but that all were to obey him. This is the true Epocha of the Power which the Roman Emperors had of making Con­stitutions, and to publish Answers to Questions of Law propo­sed to them.

Antonius Augustinus has published some of the Remains of the Royal Law, which was divided into several Tables. See here some of the chief Articles of it, which Gruterus has inser­ted in his Inscriptions, pag. 242.— foedusve cum quibus volet facere liceat, ita uti licuit Divo Augusto Ti. Julio Caesari Augusto, Tiberioque Claudio Caesari Augusto Germa­nico.

Ʋtique ei Senatum habere, relationem facere, remittere, Senatus-consulta per relationem, discessionemque facere liceat, uti licuit Di­vo Augusto, &c.

Ʋtique cum ex voluntate Authoritateve, jussu mandatuve ejus, praesenteve eo Senatus habebitur, omnium rerum jus perinde habea­tur, servetur, ac si è lege Senatus edictus esset, habereturque.

Ʋtique quos Magistratus potestatem, Imperium, Curationemve, cu­jus rei petentes Senatui Populoque Rom. commendaverit, quibusque suffraga [...]onem suam dederit, promiserit, eorum Comitiis quibusque extra ordinem ratio habeatur.

Ʋtique ei fines Pomoerii proferre, promovere, cum ex Republica censebit, esse, liceat, ita uti licuit Ti. Claudio Caesari Augusto.

Ʋtique quaecumque ex usu, Reipublicae Majestate, Divinarum, Hu­manarum, Publicarum Privatarumque rerum, esse censebit ei agere, facere jus potestasque sit, ita ut Divo Augusto, Tiberioque Julio Caesari Augusto, Tiberioque Claudio Caesari Augusto Germanico fuit.

Ʋtique quibus Legibus, Plebísve scitis scriptum fuit, ne Divus Augustus Tiberiusve Julius Caesar Augustus, Tiberiusve Claudius Caesar Augustus Germanicus tenerentur, his Legibus Plebisque scitis, Imperator Caesar Vespasianus solutus sit, quae (que) ex qua (que) Lege, rogatio­ne Divum Augustum, Tiberiumve, Julium Caesarem, Tiberiumve Clau­dium Caesarem Augustum Germanicum facere oportuit, ea omnia Cae­sari Vespasiano Augusto facere liceat.

Ʋtique quaecunque ante hanc Legem Rogatam acta, gesta, decreta, imperata, ab Imperatore Caesare Vespasiano Augusto jussu mandatuve ejus à quoquo sunt, ea perinde justa rataque sint, ac si Populi ple­bísve jussu acta essent.

CHAP. XI. That the States of the West, and of the North, ne­ver knew this Royal Law.

THough the People of the West allow'd their Princes the Ti­tle of King, yet it may be averr'd, that the most part of those Kingdoms, which had their Rise from the Ruins of the Roman Empire, never owned this Royal Law. The Power of their Kings was originally limited, as Caesar witnesseth in his Commentaries concerning the German Kings, which were, to speak properly, only Commanders or Generals. I make parti­cular mention of the Germans, because, for the most part, they were the Founders of the Northern and Western King­doms; Germany having been, as it were, the Nursery, from whence have proceeded most of those Nations, who at this Day have any Name in Europe. See what Tacitus asserts con­cerning the German Kings; Nec Germanorum Regibus infinita aut libera potestas est; de minoribus rebus Principes consultant, de ma­joribus omnes. Rex aut Princeps auditur Authoritate suadendi, magis quam jubendi potestate; si displicuit sententia, fremitu a­spernantur. Neither is the Power of the German Kings altoge­ther free or unbounded. Matters of lesser Moment are left to the Advice of the Princes, but those of greater Concern are debated by the whole Society; they hear the King as one having Authority to persuade, rather than any Power to command them; and if his Sentiments displease them, they are rejected with boldness.

Caesar gives us much the same portraicture of the Kings of the Gauls.

And that their Successors, who tore the Roman Empire to pieces, have retained this Form of a Limited Monarchy, is Mat­ter of incontestable Evidence, to every one that will take a lit­tle pains to peruse the Histories of those Nations, to run over their Laws, and take notice how they have carried it towards their Kings when-ever they fell to Tyranny.

They who would be informed how far the Power of the Go­thick Kings in Spain was limited, need only to cast their Eyes upon the account which Gregory of Tours gives us, Lib. 2. cap. 31. concerning this Matter, and upon their History in the Chronicle of St. Isidorus. We have the fundamental Laws of their King­dom set down by Molina, de Hispan. Primogenit. Cap. 2. N. 13.

But this appears yet more clearly from the Body of their Laws, which is still extant, and published by Lindenberg.

1st. It appears that their Laws were enacted, ex universali consensu Civium & Populi, by the universal Consent of the Citi­zens and People, Lib. 1. Tit. 7.

2ly, It appears that the Kings were no less obnoxious to the Laws, than the Subjects themselves. Lib. 2. Tit. 2.

3ly, It appears not that the Romans Laws, and much less their Royal Law, had any Authority amongst them. Lib. 2. Tit. 9.

4ly, It appears, that their Kings had not so much as the Power to pardon Crimes, without the consent of the Bishops, and chief Lords, Lib. 6. Tit. 7.

Lastly, It is evident from their History, that their Kings were liable to be deposed by the States, when ever they went about to transgress their Bounds, and tyrannize over their Sub­jects.

I confess, that the Council of Toledo IV. in their last Canon thus express themselves. Quicunque amodo ex nobis, vel totius Hispaniae populis, qualibet conjuratione vel studio, sacramentum fidei suae, quod pro Patriae Gentisve Gothorum statu, vel conservatione Regiae salutis (vel incolumitate Regiae Potestatis) pollicitus est, teme­raverit, aut potestate Regni exuerit, aut praesumptione Tyrannicâ Regni fastigium occupaverit, Anathema in conspectu Dei Patris & Angelorum, atque ab Ecclesia Catholica, quam perjurio profanaverit, efficiatur extraneus, & ab omni Coetu Christianorum alienus, cum omnibus impietatis suae fociis: quia oportet ut una poena teneat obnox­ios, quos similis error invenerit implicatos. Whosoever from this time forwards, either of us, or of any of the People of Spain, shall by any Conspiracy or Attempt, break the Oath of his Fidelity he has taken for the welfare of his Country, and the Gothick Nation, the conservation of the King's Life, and maintenance of the Royal Power; or who shall deprive him of [Page 58] his Kingdom, or by a Tyrannical Presumption usurp the Throne, let him be Anathema in the sight of God the Father, and the Angels, and be cast out from the Catholick Church, which he has profaned by his Perjury, and be turn'd out of all Christian Assemblies, with all the Complices and Associates of his Wickedness: because it is but fit, that all they should be lia­ble to the same Punishment, who are involved in the same Crime. The same is repeated in the Council of Toledo V. cap. 1. and in the Council of Toledo X. Cap. 2. But we may affirm with truth, that those who have worn this Canon threadbare by their frequent citing of it, did either not understand it, or changed the sense of it to impose upon and delude others.

Wherefore let those that read these words well observe;

1st. The Order which the Fathers of the Council of Toledo IV. observe in speaking of Oaths, Sacramentum fidei suae, quod pro Patriae, Gentisque Gothorum statu, vel conservatione Regiae sa­lutis (vel incolumitate Regiae potestatis) pollicitus est. I own it is to be considered that the [vel] here signifies as much as [&], this being the common stile of those Times. I say it is remarkable, that the good and happy State of the Nation, was the first Object of their Oaths, the second Object was join'd with it, viz. the Conservation of the King, yet with the understood Proviso, if he did not oppose the first, but was subservient to it. For indeed, I cannot believe that God made the Goths of another nature than the rest of Mankind, or so much Fools (enough) as to prefer the Means before the End; and to believe that they ought to engage themselves to seek the Means, any further than they are of use to obtain the End. Ad Tutelam Legis Subditorum Rex creatus est. The King, saith Chancellor Fortescue, is made for a Safeguard to the Subjects Laws. The Preservation of the Subject is the first Obligation, and the next that of the Prince.

2ly, We must observe, that the words of the Canon regard those, who by a Conspiracy undertake either to kill the King, or to deprive him of his Kingdom, or to usurp the Throne by a Tyrannical Presumption. But all this while they suppose a lawful King, that is to say, a King acknowledged as such by the State, attack'd by some furious Conspirators, with design to dethrone him, against all Right and Justice, for to place another in his stead. The Council does not in the least suppose that it is unlawful for the State to deprive a Tyrant of the [Page 59] Authority he abuseth. If we suppose the contrary, we must take St. Isidore, who was President of that Council, for a Fool, fit to be shut up in Bedlam, for he expresly makes this Observation, that Rex à rectè agendo vocatur; si enim piè & justè & misericor­diter agit, merito Rex appellatur: si his caruerit, non Rex sed Tyran­nus est. Addit 2 ad Cap. Caroli Magni, c. 21.

3ly, I maintain that of all the Passages of Antiquity which are alledged by the Defenders of Passive Obedience, there is not any to be found which they ought to have been more careful to suppress in silence, than that of this Council. And we must judg them possess'd with a brutal Stupidity, or guilty of strange Malice, in employing such a Passage as this to support their Pre­judices in favour of those Princes who overturn the Govern­ment. For who were these Fathers of the 4th Council of To­ledo? They were the very Men, who three Years before this Council, had cast off Suinthila, after he had reign'd ten Years over them; who had raised Sisinandus in his room, against whom they justly feared that some furious Fellows might hatch a Conspiracy. They were the Men who pronounced three Anathema's against Suinthila for the Crimes he had been found guilty of, whilst he was possest of the Royal Power. They were the Men who declar'd, That if a King does not well acquit himself of the high Charge he is entrusted with, he ought to be excommunicated, and consequently depriv'd of all Power in his Kingdom. All which is contain'd in Chap. 75. of the same Council, where they observe, that the Election of Kings took place after the Death of their Fathers. Which makes it ap­parent, that there is no ground at all to suspect the Goths, or the Bishops of Spain and of Gallia Narbonensis, who assisted at that Council, to have espous'd the Maximes that some would fix upon them.

The Lombards observed the same Rules in their Government, as we may see in their History written by Paulus Diaconus.

And as for what the other Kingdoms that were formed of the Ruines of the Empire of Charles the Great, we find that their Power was always limited in the same manner, none of those Princes having ever thought of reviving the Royal Law of the Ancient Roman Emperors in favour of themselves.

And because this Affair bears so great a resemblance with the present Revolution, I desire the Reader not to take it ill, that [Page 60] I have copied the 75th Canon of the 4th Council of Toledo, at the end of these Remarks, and that he may make his Reflections thereupon: for he will find that those who make use of it, have no reason to complain, That they who have made choice of the Prince of Orange, upon the desertion of James II, after so ma­ny unjust Proceedings and Enterprizes, tending to the total overthrow of the State and Government, have exactly followed this Example of the Kingdom of Spain; and that the Clergy who have followed these Decisions of State, have therein imi­tated the Conduct of this Council of Toledo; and that those who oppose themselves against it, are found in the same Case with those whom the Church of Spain and of Gallia Narbonen­sis did so solemnly excommunicate.

The Kings of Burgundy reigned with the same Limitations: For which we may consult the Law of Gondebaud, which is still extant, and which was made, Habito Consilio Comitum & Proce­rum, with the Advice of the Earls and Lords, who signed the Law as well as King Gondebaud: which makes it very evident that the Kings of this People had not the Legislative Power in­vested in them alone. We find the same Clause in the second Addition to that Law. And indeed we need only to take no­tice of what Marius Aventicensis relates concerning King Sigis­mond in his Chronicle, to enable us to judg that those People had other Laws besides that of the Will of their Princes. For this Prince having caus'd his Son to be strangled without any Form of Justice, his Subjects conceived so great an Indignation against him, that he was forced to hide himself, and to take upon him a Fryars Habit, for a Mark of his Repentance, which yet was not able to give them Satisfaction, for as soon as he ap­peared, they delivered him to Clodomer King of Orleans, who carried him to France, where soon after he lost his Life in a Tra­gical manner.

We find Instances of the sharing of the Soveraign Power between the Lords and the King in the Ancient Histories of Swe­den, as may be seen in Joan. Magnus, Hist. lib. 15, & 29. and in Crantzius, lib. 5. We find also that by the Oaths taken at the Coronation of their Kings, the Bishops, Nobles, Citizens and People oblige themselves, in case the King commit any thing by himself, or by another, contrary to the Articles or Treaty he swears to at his Coronation, to oppose themselves to his Enter­prizes [Page 61] upon their Honour, and upon their Oath, Chytraeus, lib. 2. They who do not know the Manner of the States of Sweden deposing of Sigismond, and the Reasons they alledged for it to King James, may peruse the Relation of it in Goldast.

We find the same Limitations of the Regal Power in Den­mark, as Pontanus observes in his 8th Book; and it was for en­deavouring to break through these Bounds, that Christiern the II. was deposed, as may be seen in Petersen, in Chron. Holsat. Where he hath set down the Acts and Reasons of the State of Denmark about that Proceeding.

That the Power of the Kings of Hungary, was a Power li­mited by the Fundamental Laws of the State, is a Matter so notorious, that Chalcondilas has made it his Observation, in the second Book of his History, where he compares the Royalty of Hungary in that respect to the Kingly Power in England. And which may be farther made out by the Fundamental Laws of Hungary, set down by Bonfinius, Decad. 4. lib. 9. Where we also find the Oath taken by those Kings at their Coronation, being the most expresly conditional that can be imagined.

Chalcondile saith the same Thing of the Kingdoms of Arragon and Navarre, Lib. 5. where he observes, that the Kings did not create the Magistrates, that they could not make any Garri­son without the Consent of the People, and that they could not require any thing of them, contrary to their Customs, that is to say, contrary to their Laws. Accordingly we find that the Kings of Spain have no Power to lay any new Impositions upon their Subjects without their consent. They are obliged to swear they will observe the Laws. And in Arragon the People declare to the King at his Coronation, that if they do not perform their Oath and Promise, their Subjects are thereby set free from their Oath of Allegiance.

We find the same Thing in the History of the Kingdom of Portugal, but especially in that part of it which gives an Ac­count of the Reign of Alphonsus III. The Fundamental Laws of which Kingdom we find in the 17th Title of the Ordinances of Portugal, Lib. 2. §. 2, 3. & seq.

So true is it that all those Kingdoms never in the least suppo­sed that their King had an Absolute Power over them. And it is as certain, that almost all those States have always [Page 62] maintained, That the Power of their Soveraigns was so li­mited,

1. That they could make no Laws without the States Gene­ral of the Kingdom.

2. That they could not levy any Mony on their Subjects with­out their Consents.

3. That they could not break the Laws according to their Will and Pleasure.

4. That in case of their violating the Fundamental Laws of the State, they were liable to be deprived of a Power which they abused.

5. That the States were free to chuse such a Form of Go­vernment, and such a Person for to govern them, as they thought most expedient for them.

This is that which I intend to prove more particularly by Examples taken from the Empire, and the Kingdoms of Poland, France, Scotland, and England; to which I shall add some Re­marks upon those Titles which deceive some, who consider Things of this Nature with too little attention.

CHAP. XII. That the Power of the Emperors of the West, is a Limited Power.

THis is a Matter that may be easily gathered from these fol­lowing Instances:

1. Because Charles the Great, who was the first that took up­on him the Title of Roman Emperor, reigned according to the Customs of the Princes of Germany, of whose Opinion concern­ing an Absolute and Despotical Government, Tacitus has given us some Account, who represents them, as having the greatest abhorrence for it.

2. Because Lewis the Good, did himself acknowledg, that the Soveraign Power was shared between him and the chief Mem­bers of the Empire; Capitular. Lib. 2. Tit. 3. Sed quanquam summa hujus ministerii in nostra persona consistere videatur, tamen & Divinâ Authoritate, & humanâ ordinatione, ita per partes divi­sum esse cognoscitur, ut unusquisque vestrûm in suo loco & ordine, partem nostri Ministerii habere cognoscatur. But though the whole of this Ministry seem to consist in our Person, yet it is known to be so shared and divided, as well by Divine Authority, as Humane Ordination, that every one of you in his respective Place and Order, is known to partake of this Ministry. Thus was he pleased to express himself in the Assembly of the States General, whose Authority he owned to be as much of Divine Right as his own; which made Charles du Moulin, the most fa­mous of all French Lawyers, say, Ergo solum Caput non omnia potest, imo persona Principis non est Caput nisi Organicum, sed verum Caput est Principatus ipse, cum membris integrantibus eum; Where­fore the Head alone cannot do all, yea, the Person of the Prince is only the Organical Head, but the true Head is the Principali­ty it self, with its integral constituting Members. Which are his express words in his Commentaries upon the Stile of Parlia­ment, dedicated to the first President of Paris, and printed with Priviledg.

[Page 64]3. Because though the Western Empire did seem to be so He­reditary, that the Emperors had divided it amongst their Children; yet, in process of time, it became Elective, which began to take place in the Eleventh Century, in the Person of Rudolphus.

4. In that they always excluded Females from the Succession to the Empire, though they had respect in their choice to the Imperial Blood.

With respect to the Rights of Soveraignty we find, that tho the Empire be a Monarchical Government, yet we see it is mixed with Aristocracy; for the Emperor cannot enjoy it, but with the Consent of the States of the Empire, without making himself liable to be contradicted and deposed also.

He has not the Right of making Laws, without the Consent and Authority of the States of the Empire.

He has no right to declare War, without the foregoing con­sent of the States.

He has no right of levying any Imposition on the States, without the Consent of the Diets.

Whenever he begins to usurp the Rights that do not belong unto him, and to infringe the Rules of Government he has sworn to observe, the States have a Right to oppose his Enter­prizes, to repel Force with Force, and finally to deprive him of the Empire, in case he continue in the Design of changing the Form of Government. For though there be no Laws, which bound and regulate the Article of the Deposing of Emperors, when they abuse their Power for the overturning of the State, or for invading the Rights of the Princes of the Empire, and Imperial Cities; yet the Germans have always held, and still do hold it for a certain Truth, that it is a Right inherent in the Empire, to deprive an Emperor of the Imperial Power and Dignity, and to confer the same on another. This is the com­mon Opinion of the German Lawyers represented to us by Lam­padius, Arnizaeus, Diderick, Conringe, and many others.

And indeed we may say, that there is nothing more certain, if we consider the Examples of Emperors that have been deposed since these 7 or 800 Years; Examples that are neither rare nor unknown, and upon occasion of which the States of the Empire have had an opportunity to declare & make out their Rights and Pretensions. One of the first Examples we find respecting this Mat­ter, [Page 65] is the Deposition of Lewis the Good, in the Year 833. The Acts whereof we may see in Baronius, Goldast, du Chesne, and le Comte; Whereupon we may make these Reflections; 1. That the Thing was done with the Consent of the Bishops, and of all the Nobility. 2. That the Estates above all accuse him for having broke his Coronation-Oath. 3. That though this Lewis was afterwards restored to the Throne of the Empire, yet those that restored him, never contested the Power the State had to reject a Prince, who overturn'd the Rules of Government, but supposed only that he had not been duly convinced of the Crimes laid to his charge.

We have another Example, in the Deposition of Henry IV. The Archbishops, Bishops, Dukes and Earls, declare, that they had not sworn to him, till after he had engaged himself by his Oath to them, to observe the Laws and the Capitulations of the Empire: so that having now violated them, they were set free from the Oath they had sworn to him, and that they con­sidered him as an Enemy, against whom they would wage war to their last breath. Lambert Schafnaburg.

One of the last Instances we find in the deposing of the Em­peror Wenceslaus, who was deposed by the Electors of the Empire in the Year 1400, after that he had been twice taken Prisoner, and had been exhorted by the State, to amend and take up from his irregular Actings. Aventin. lib. 7. Annalium & Cuspinian. in Vita Venceslai. We may see the most part of these Articles, and many more solidly confirmed in the Book of Carpsovius, de Lege Regia Imperatorum Germaniae, and in the Imperial Capitulations, and other Laws, which he has caused to be printed at the End of his Treatise.

CHAP. XIII. That the Power of the Kings of Poland is Li­mited.

WE find the same Limitation in other States, whether they be Successive or Elective, I shall content my self to alledge only one Example concerning the Kingdoms that at present are Elective, and that shall be of the Kingdom of Po­land.

Poland, from the Relation of Cromer, gives us an illustrious Example of the Wisdom of Northern People, in bounding the Power of their Princes. After that the Family of Lech, the first Founder of that Kingdom, was extinct, that State changed the Royal Government, into that of XII Waywods, otherwise called Palatines. These Palatines abusing their Authority, they re-established the Regal Government, in favor of Cracus, whose second Son was expell'd by the Polanders for killing his El­der Brother.

They afterwards chose the Daughter of Cracus for their Queen, who, 'tis said, having drowned her self to avoid Mar­riage, the Polanders again established 12 Palatines, as they had done before: but afterwards suppressed them again, because they found them insufficient to defend the Countrey, and chose Premiel for their King. This is Lesko the 1, who lived about the year 750. It was not till the Year 965 that Miesco turn'd Christian, and took upon him the Title of King of Poland, which Title was confirmed by the Emperor Otho III to Bosletas his Successor.

His Successors having reigned until Lesko Surnamed the Black, who was forced by Flight to quit the Kingdom, because he was not able to resist the Tartars, and died without Issue: the Poles wearied with intestine Wars, excited by the Ambition of their great Lords, chose Premiel to be their King, who being kill'd, without leaving any Children behind him, they made choice of [Page 67] Ladislaus, who was afterwards desposed, for Male-Administra­tion, by the States General. Wenceslaus King of Bohemia, who had been chosen in his stead, dying in the Year 1305, Ladislaus was recall'd to the Government, to whom Casimir his Son suc­ceeded; who in the Year 1370 designed for his Successor, with consent of the States, Lewis, the Son of Charles King of Hungary, by his Sister. The Poles after the Death of Lewis, chose Edwiga his Daughter, upon condition that she should marry the Person whom the States should recommend to her for a Husband; the Person recommended by them was Jagello Duke of Lithuania, who had the name of Ladislaus given him by the Archbishop of Gnesna, who anointed and Crowned, after he had first baptiz­ed him. He outliv'd Edwiga who died without Children, and had for Successors the children of his fourth Wife, who reached until Sigismund Augustus, after whose Death the States chose in the Year 1573 Henry Duke of Anjou, who after he had reigned four Months in Poland, abandon'd the Kingdom, to take posses­sion of the Crown of France, and was deprived of that of Poland, by the States, as may be seen from the Acts recorded by Histori­ans. This Vacancy occasion'd a Division in the States, one part of them having chosen the Emperor Maximilian the Second; and the other part Anne the Sister of Sigismund Augustus, to whom they gave Stephen Battori Prince of Transylvania for her husband, who Married the said Anne, and was Crowned at Cra­covia in 1576. After the Death of Stephen, the States chose Si­gismund, Son of John III King of Sweden, and of Katharine Daughter of Sigismund I. of that name, King of Poland.

It is evident from this Abridgment, 1st. That the Poles al­ways pretended to be the Masters that had right to give the Form to their State, which seemed to them most comporting with the Good and Welfare of it.

2ly, That they took it for granted that they had Power to reject those Princes or Palatines, whose Behaviour was contrary to the Publick Good, for which they had raised them.

3ly, That they ever had an Eye to Succession, so far as to be­stow the Crown sometimes upon Daughters, yet not thinking themselves bound to it, but only so far as the good of the State did permit.

[Page 68]4ly, That they had regard to the appointing of a Successor, when the States had first consented to it.

5ly, That the Flight or Desertion of their Kings, has ap­pear'd to them a sufficient Ground to proceed to a new Election, in their stead, and to reject them. This is evident from the History of Lesko, surnamed the Black, and of Henry the III of France.

6ly, That the anointing and Crowning of their Kings, was of no avail to dispense with their Oath in which they publickly declare, That if they do not observe the Laws of the State, the People are dispensed from their Oaths of Fealty they have sworn to them.

CHAP. XIV. That the Monarchy of France is not an Absolute Em­pire, but a Limited Royalty.

'TIS not of to day only, that some have imagined the Mo­narchy of France, to be an unlimited Power, and an Ab­solute Empire: Bodinus was of that opinion before them; but they that follow his sentiment, understand nothing of that Constitution: or if they do, have a greater desire to flatter the unjust Pretensions of that Court, than to maintain the Truth.

We need only to lay open the nature and antient Power of the States General, with the manner of their Behaviour to­wards those Kings, who abused the Power committed to them, to make it evident, that the French Monarchy is limited in its Constitution.

Under the first and second Race of the Kings of France, there was no mention of any Assembly of the States General, but on­ly of the Franks, that is to say, the Nobles and Prelats, who were used to meet together, on the first of May, in the open Field, where they deliberated with the King, concerning mat­ters of Peace and War, and took Resolutions of what was to be done all the Year after. After the breaking up of this Assem­bly, [Page 69] the Court of the Royal Palace, otherwise called the Court of France, composed of the Prelats and Great Barons, that is to say, the immediate Vassals of the Crown, met together five or six times a Year to take care of the Execution of what had been re­solv'd upon in the General Assembly, to deliberate about pub­lick Affairs that offer'd themselves, and to determine as Judges the most important matters of private Persons.

Under the declination of the 2d Race, the Governours of Cities and Provinces, having made themselves Hereditary Lords of the places of their respective Governments, under the Title of Counties and Dutchies, cut themselves large Portions out of the Soveraign's Lands: by which means the Court of France was no more frequented by the Lords, except only, when they were obliged to do Hommage, and take the Oath of Fidelity, or when an Enemy invaded France: for then they presented themselves before the King, to advise about the present necessi­ty. This Disorder continued until the Reign of Philip Augustus, who having conquer'd Normandy, and the Counties of Tourain, Anjou, Maine, from John without Land, King of England, and the Country of Vermandois from the Earl of Flanders; restored in some manner the Royal Authority, and forced the Barons to frequent his Court, and to be present at the Assemblies he called for the Affairs and Necessities of State. Nevertheless those Assemblies consisted only of the Prelats and Barons, and this till the Reign of King John (some Authors say of St. Lewis) who being taken at the Battle of Poictiers, and carried to Eng­land, they were forc'd to raise a great Sum of Money for his Ransom; and to this End they appli'd themselves to the Mer­chants, and other Inhabitants of Cities, who were then the richest Men of the Kingdom, who agreed to pay the King's Ransom, upon condition that they might be received into the Charges and Offices, as well of Peace as of War, and be allow­ed to have a Place and deliberative Voice in the States-General, which was accordingly granted to them.

The Power and Prerogative of the States-General was such, that the Kings of France could not make any new Levies of Mo­ny without them. Which continued so till the Reign of Charles [Page 70] VII. as is acknowledged by Philip de Commines Lib. 6 c. 7. Nei­ther could they make any new Ordinances, nor repeal or sup­press the old, without the consent of the said States, as is own­ed by Davila lib. 2 de li Guerri Civili.

Under the First, and second Race of the French Kings, the Ordinances were likewise made in the Assembly of the Prelats, and Barons, which constituted the Soveraign Court of France; 'twas there the Treaties of Peace were made between the Kings of France and Foreign Princes, and Nations; the Portions of the Children of France were there regulated; there they treated of their Marriages, and generally of all that concern'd the Af­fairs of State, of the King's Houshold, and the Children of France. The Ordinances that were made in the said Assemblies, in the Name of the Kings of France, were conceived in these Terms; Nos de consilio & consensu Procerum nostrorum statuimus, &c. We with the Advice and Consent of our Lords do ordain. And from hence is derived the Custome observed at this Day, of verifying the Royal Edicts in the Parliament of Paris, which in some sort represents the Assembly of the Prelats and Barons, who composed, as we have said, the Soveraign Court of France.

In the Treasury of the French Kings, at Chartres, are found several Treaties between King Philip Augustus, and Richard and John without Land, Kings of England, at the bottom of which are the Seals of the Prelats and Barons; by whose Consent and Approbation the said Treaties had been made. And Pope Inno­cent VI having sent to entreat St. Lewis that he would be pleas'd to permit him to retire into France, to secure himself from the attempts of Frederick II. the said King answered the Popes Nun­cio, that he would communicate the Matter to his Parliament, without whose Consent the Kings of France could do nothing of Importance. This is related by Matthew Paris, in the Life of Henry the III. King of England, ad Annum 1244.

We find also the manner how the States determined all Affairs respecting the Crown and Succession, as for Example the Pro­cess which was between Philip de Valois, and King Edward. In this Assembly of the States, saith the Chancellor de l' Hospital, was Tried and Debated the most Noble Cause that ever was, viz. [Page 71] To whom the Crown of France did belong, after the Death of Charles the Fair, to Philip of Valois his Cousin, or to Edward King of England, King Philip not presiding in that Assem­bly, because he was not yet King, and besides was a Par­ty.

It appears clearly from the Power of the States General, That the Power of the King of France is bounded by Law; in­deed this is a Truth whereof we cannot make the least doubt, forasmuch as we find it acknowledged by Lewis XI. the most un­bridled Monarch that ever was. See what he writes in the Ro­sary of War, composed by him a little before his Death, for the use of Charles VIII. his Son. ‘When Kings or Princes, (saith he) have no respect to the Law, they take from the People, what they ought to leave them possest of, and do not give them what they ought to have; and in so doing they make their People Slaves, and thereby lose the name of a King. For no body can be called a King, but he that rules and has Dominion over Free-men.’

This thing was so notorious even to Strangers themselves, that Machiavel maintained that the Stability of the Monarchy of France, was owing to this, because the Kings there were ob­liged to a great number of Laws, which proved the Security and Safe-guard of all their Subjects. Lib. 1 di Discorsi c. 16.

Messire Claudius de Seissel, in his Treatise of the French Mo­narchy, part 2. chap. 12. dedicated to Francis I. maintains upon this account, That the Monarchy of France does partake of Ari­stocrasy, which makes it both more perfect and durable. Yea he asserts that it was also in part Democratical, and expresly maintains that an absolute Monarchy is no other than true Ty­ranny, when it is made use of against Religion, Justice and the Government; That a Prince who passeth these Bounds, must be held and esteemed for a wicked Tyrant, cruel and intolera­ble, who by this means pulls down the Hatred of God and his Subjects upon himself.

Du Haillan Historiographer of the Kings Henry III and Henry IV. follows the same notion of Claudius de Seissel, in his third Book of the state of the Affairs of France, dedicated to Henry [Page 72] III. maintaining that the Government of France is composed of Aristocrasy and Democrasy, p. 168.

And indeed who can judg otherwise, when he attentively considers these six things, which are a part of the publick Con­stitution of the Kingdom of France.

1st. That though the Crown for a long time since has fol­lowed the form of Succession, yet the form of Election is still observed at the Coronation. Hunc vultis, hunc jubetis esse Regem, This is he whom you will and require to be your King; these Words are spoken to the People before the Coronation. We find the Peoples Election is mentioned, and the King called elect in the form of Coronation, published by Hugo Menard a Benedictin.

2ly. The King is there engaged by his Oath, to rule accord­ing to the Laws of the Kingdom; as may be seen in the Cere­monial of France.

3ly. He can make no Laws but in the Parliaments or States General; whereof we have an Instance in the States of Orleans, in the Year 1560. and is the same with what D'avila has ob­in his 2d Book of the Civil Wars.

4ly. He can make neither Peace nor War but by the Advice of the States General. This is acknowledg'd by Lewis XI as we find in Philip de Commines 2 Book ch. 14.

5ly. He can raise no Mony but by Concession from the States General. We find this point thus decided by the States of 1338, with the consent of King Philip, That no Taxes could be imposed or levied on the People of France, without urgent and evident Necessity did require it, and then only by the grant of the States. Gila Fol. 157. Philip de Commines, lib. 5. c. 18. saith, with respect to this point: ‘Is there any King or Lord on the Earth, who has Power, besides his Demesne, to im­pose so much as a Penny upon his Subjects, without the Grant and Consent of those who are to pay it, except it be by Tyranny and Violence?’

6ly. The Kings of France are liable to be deposed by the States General, in case they abuse the Authority they are en­trusted with.

This last Article, viz. of the Proceedings of the French against those of their Kings, who abused their Authority, does evidently demonstate, That the Monarchy of France is altogether limited, according to the Platform Caesar gives us of the Government of the ancient Germans or Francs, who are descended from them. There is a passage, which is ordi­narily abused, to prove that unjust Kings and Tyrants cannot be deposed, wherein Gregory of Tours thus expresseth himself, to Chilperic Lib. 5. c. 19. ‘If any one of us who are Lords transgresseth the Bounds of Justice, you have the Power to punish him; but if you your self do not keep within them, who is it can correct you? We indeed speak to you, and you hear­ken to us, if you please, and if you will not, who is it shall condemn you? except he who has said, that he is Righteous­ness it self.’ I don't believe there was ever any Author, that undertook to defend the Doctrine of Non-resistance and Passive Obedience, who has not made use of this Proof: but give me leave to say, that they have quoted this passage with as much Judgment as they alledged the 75th Canon of the 4th Council of Toledo: for 1st. Observe that this is the Discourse of Grego­ry of Tours, who was accused by Chilperic, for opposing him­self to the Justice that Prince demanded of a Council, against Pretextat Bishop of Roven, whom he accused of high Treason, and forasmuch as the Bishops were perswaded of his Innocence, whom they saw attackt by false Witnesses, this Gregory had the Courage, to maintain that it was their Duty to make their Remonstrances to the King concerning this matter. The King took their Design of remonstrancing him for an opposition to the Justice he had demanded; whereupon Gregory of Tours made the Discourse just now mentioned. So that it plainly ap­pears; that this Discourse only respects the order of Bishops, who under that Relation, have no other way to redress them­selves, with regard to Kings, but only by Remonstrances, but does not at all speak of the Body of the State, who are in­vested with other Rights, in Reference to a King who under­takes to pervert Justice. But to make it appear that French­men, at that time, did not believe, that Kings had the Privi­ledg, that they could not be deposed by the States: Though [Page 74] they abused their Authority, we need only to consult the Histo­ry of the deposing of Childeric, Father of Clovis, which is set down by Gregory of Tours, Lib. 2. ch. 11. and approved of by him.

We find that they had preserved this their Right by the Deposition of another Childeric in the 8th Century, and whereupon it is obvious and natural to make these Reflecti­ons.

1. That the Francs had the Power of choosing and deposing their Kings.

2. That the Oath they swore to their Kings was conditional, and supposed their acquitting themselves of the charge and trust reposed in them, and which they were obliged by Oath to make good.

3. That it is false that King Childeric was deposed by the Authority of Pope Zachary, as the Papists have maintained; forasmuch as that proceeding was an Act of the States Gene­ral, who made use of their Right on this occasion.

This is so true, that Pope Zachary himself laid it down as a Maxim in his Letter to the Francs, that this was a right inhe­rent in the People. Nam si Princeps Populo, cujus beneficio Regnum possidet, obnoxius est; si Plebs Regem constituit, & destituere potest: For if a King, saith he, be obnoxious to his People, by whose graunt he possesseth his Kingdom; if the People constitute a King, they may also depose him.

If we come to the Race of Charles the Great, we find Lewis the Good deposed by the States assembled at Thionville. The whole Proceeding whereof may be seen in Baronius, du Chesne Le Cointe, where we may observe 1. That it was done with con­sent of the Bishops. 2. We see there an Indictment on di­vers Articles, which contains as many Crimes against the State. 3. When this Deposition was recalled afterwards, they did annul the Acts of the former Assembly, not as if they had acted without Power, but because they had proceeded on false Accu­sations, and insufficient Grounds. We find also the same Pro­ceeding with respect of Charles the Gross, and Charles the Simple.

Indeed it was then so notorious, that the Power of the Kings of France, though they took to themselves the Title of Empe­rors, was limited, the Estates being invested with part of the Soveraign Authority, that Lewis the Good solemnly avows the same, Lib. 2. Capitul. c. 2, & c. 12. We find also that the Cler­gy of France was so far convinced that the States of the King­dom had right to dispose of the Crown, for the good of the State, that when Charles the Bald was chosen by the Kingdom of Lorrain in Prejudice of the Children of the King his Bro­ther; and that Pope Adrian II. wrote to them thereupon by Hincmar Archbishop of Rheims, threatning to excommunicate them, they sent back this Answer to him by the said Hincmar: Petite Dominum Apostolicum, ut quia Rex & Episcopus simul esse non potest, & sui Antecessores Ecclesiasticum ordinem quod suum est, & non Rempublicam, quod Regum est, disposuerunt, non praecipiat nobis habere Regem, qui nos in sic longinquis partibus adjuvare non posset contra subitaneos & frequentes Paganorum impetus, & nos Francos non jubeat servire, cui nolumus servire, quia istud jugum sui Antecessores nostris Antecessoribus non imposuerunt, & nos illud portare non possumus, qui scriptum esse in sanctis libris audimus, ut pro libertate & haereditate nostra, usque ad mortem certare debeamus. Desire the Apostolical Lord, that forasmuch as he cannot be King and Bishop both together, and that his Ancestors have con­cerned themselves with the Ecclesiastical Order, which is their particular Province, and not with the Common-wealth, which is the Office of Kings, not to command us to take such a one for our King, who at so great a distance, is not able to help us against the sudden and frequent Assaults of Heathens, and to require us Francs to serve him, whom we will not serve, be­cause his Ancestors never offer'd to impose this Yoke upon our Ancestors, neither can we bear it, who find it written in the Holy Books, That we ought to fight for our Liberties and our Inheritance even unto Death.

We see also that he who was the Head of the Third Race, viz. Hugh Capet, was chosen King of France, notwithstanding the apparent Rights of Charles of Lorrain, who was the next Heir of Lewis V. by reason that the said Charles seemed too [Page 76] much linked to the Interests of the Germans, who at that time were Enemies to France, Guil. de Nangis ad An. 987. and others in du Chesne.

Who does not know the History of Henry III. who having been deposed in Poland, for deserting that Kingdom, was after­wards deposed in France, by advice of the Sorbonn, and of the greatest part of the States.

We may easily judg from these two Characters, that French­men never were infected with the Doctrine of Non-resistance: The one is, because they look'd upon this Doctrine as an Error. See what Gerson the famous Chancellor of the University of Pa­ris saith of it; Error est dicere terrenum Principem in nullo, suis subditis, dominio durante, obligari; quia secundum jus Divinum & Naturalem aequitatem, & verum Dominii finem, quemadmodum subditi debent fidem, subsidium & servitium Domino, sic etiam Do­minus subditis suis fidem debet & protectionem. Et si eos mani­feste & cum obstinatione in injuria & de facto prosequatur Princeps, tunc Regula haec Naturalis, vim vi repellere licet, locum habet. Opusc. adversus Adulat. consid. 7. It is an Error, saith he, to assert, that an Earthly Prince, as long as his Dominion lasts, does not stand engaged to his Subjects in any thing; because, according to the Divine Law, Natural Equity, and the true End of Dominion, as the Subjects owe to their Prince Faith­fulness, Subsidy and Service, so their Prince owes them Faithful­ness and Protection; and in case he doth publickly and with obstinacy imperiously oppress them, then that natural Rule takes place, That it is lawful to repel Force by Force.

The second is, that they have always with horror rejected the Abuse that has been made of the Expression in 1 Sam. 8. Hoc est Jus Regis, for to maintain the Tyranny of Princes. ‘If we will believe the Laws amongst you Princes, (saith Clau­dius d' Epense to King Henry II.) you are Lord of our Body and Goods; or to speak more like Christians, we and ours are at your command. Your Majesty ought to abhor that Right nothing less than Royal, and nothing more than Tyrannical, which God by the Mouth of Samuel did not al­low to Kings, but only threatned the People with, telling them, This shall be the Right of the King, &c. And then [Page 77] adds, Go to now ye Dogs and Flatterers of the Court, go to, and alledg hence-forward this Right, not Regal but Barba­rous, but Turkish, but Scythian, or if any worse Epithet can be invented.’

I acknowledg that the Face of Affairs is very much changed since these hundred Years. The States General have not been assembled almost these Seventy Years. The Parliaments them­selves, which were established by the Kings and the States General, to preserve the Rights of the States, have been for­ced, by the present King, to verify without any Debate, all man­ner of Edicts for the Imposition of Mony. But yet after all, this Change is of so late standing, that there is little appear­ance it should be look'd upon as a sufficient Prescription a­gainst the Interest of the State. Those French-men who have any knowledg of the Laws of the State, and its Constitution, set down the Epocha or Date of this Change of the Ancient Maxims of the Kingdom, to wit, the time which followed the Cessation of the Holding of the Estates General, or the Mino­rity of Lewis XIII, and the Reign of Lewis XIV.

Let no Body imagine that the Ancient Idea of the Govern­ment of France, is quite effaced out of the Spirit of the Na­tion. I own, that Lewis XIV. by a Reign both very long and very violent, has made the French lose a great deal of their Courage. The Clergy of that Kingdom have, above all, en­deavoured to support his Tyranny; by Maxims advanc'd and contriv'd by them for the ruin of the Protestants, with as lit­tle regard for their Country, as they have shewed Conscience in their base Panegyricks pronounced to his Honour. But how­ever there are still in being a great number of honest Men, who adhere to those Ancient Maxims. I can at this present produce one of these from amongst the Clergy, the Learned and illu­strious M. Joly, Canon of the Church of Paris, who in the Year 1663, publish'd a Book, with this title, Important Maxims for the Education of a King. This Man alone may suffice to prove my assertion, for he very vigorously confirms these Max­ims, by the Testimony of Kings themselves, Chancellors, Mi­nisters [Page 78] of State, Lawyers, and Historians of France, that they were always of Opinion in that Kingdom, That the King holds his Authority from the People; That the Power of Kings is Limited; That the French Monarchy is a Monarchy allay'd and temper'd with Aristocrasy and Democrasy; That the Kings can do nothing without the States General, which are the very same things, with our Parliaments; That the Judges are the Peoples Officers; That the words so much abused, Such is our Pleasure, signify only, This is the Decree of our Courts of Ju­dicature: That they have no Right to levy any Impositions, without the Consent of the States; and many other Articles of that Nature.

CHAP. XV. That the Royalty of England never had any other form than the rest of the Northern and Western States.

I Have insisted the longer to shew how the Royalty was limited in France, because the most part of our Modern Writers, seem to have had in their aims to reduce our Monarchy to the Form of that Kingdom, as supposing that it would have been a most glorious and advantageous Thing for our late Kings, to transform them into so many Lewis's XIV; that is to say, to change us into Slaves, and our Princes into Tyrants.

I shall say nothing of the Royalty in Scotland, nor of the Bounds have been always set it by the Fundamental Laws of the State. There has been lately so much writ concerning this Matter, to justify the Proceedings of the Convention of that Kingdom, that it would be of no use to repeat it here.

And for the same reason I shall excuse my self of the trouble of treating what concerns the Limitation of the Royalty in England so largely, as the Subject seems to deserve: however what I shall say will be sufficient to make it appear, that Royalty has been always on the same foot in that Kingdom, as it is still in the other Western Kingdoms.

If we consider the most remote times that History gives us any account of, we shall find that the Saxons, as to the Power of their Kings, followed the Example of the Ancient Germans, whose Authority, if we may believe Caesar and Tacitus, was altogether limited and restrain'd.

We find in the Mirror of Justices, cap. 1, 2. that the first Saxons created their Kings, that they made them take an Oath, and that they put them in mind that they were liable to be judged as well as their meanest Subjects.

After that the Right of Succession was received in England, yet it never deprived the English People of the Right of choosing their Kings. This is evident from the Form of the Coronation published by Hugh Menard, at the end of the Book of Sacraments of St. Gregory, p. 278. which Form was as fol­lows. After they had made the King promise to preserve the Laws and the Rights of the Church, we read these words: Deinde alloquantur duo Episcopi populum in Ecclesia, inquirentes eorum voluntatem, & si concordes fuerint, agant gratias Deo Omni­potenti, decantantes Te Deum laudamus? ‘Then let two Bishops speak to the People in the Church, and demand their Will and Pleasure, and in case they do agree, let them give thanks to Almighty God, singing, We praise thee, O Lord.’ And, pag. 269, & 270, ‘We pray thee most humbly to multiply the gifts of thy Blessings, upon this thy Servant, whom we chuse to be our King, viz. of all Albion and of the Franks.’ That the Kings of England are as well bound by their Oath, as their Subjects, appears by the confession of Henry III, upon occasion of one of his Councellors of State, pretending, that he was not obliged to preserve the Liberties of the Nation, as being ex­torted from him, expressing himself in these terms recorded by Mat. Paris under the Year 1223. Omnes libertates illas juravimus, & omnes adstricti sumus, ut quod juravimus observemus, pag. 219. All these Liberties we have sworn to, and we are all bound to observe and make good what we have sworn. English Men were always so well perswaded of this Truth, that in their de­posing of Richard II, they thought they had done enough to prove, That the King had forsworn himself by the Oath he had taken, having broken several of the Articles he had promised to his Subjects by Oath to observe, as we may see in the Acts of his Deposal recorded in the Chronicle of Knigh­ton.

James the First was convinced of this, when he told the Par­liament of 1609. the 21st of March, ‘That the King is bound by a double Oath, tacitly, as being King, and so bound to protect his People and the Laws, and expresly by his Coro­nation Oath, so as every just King is bound to preserve [Page 81] that Paction made with his People by his Laws, framing the Government thereunto; and a King leaves to be a King, and degenerates into a Tyrant, as soon as he leaves off to govern by Law.’

For what concerns the Laws, we find that the Kings alone had not the Authority of making them. King Edwin published his Laws, Habito cum Sapientibus & Senioribus Consilio, with Ad­vice of the Wise Men and Elders. Ina King of the West Sax­ons did the like. The Laws of Alfrede were made after the same manner, Ex consilio prudentissimorum, atque iis omnibus pla­cuit edici eorum omnium Observationes.

As for the Government of the State, we find that the Parlia­ments met, and that their Meetings were fix'd once a Year by Alfred; which was renewed by Edward II, by two Laws. Moreover the King was obliged to assist at them, in case he was not sick; and nothing but his Sickness could dispense with his Attendance.

That English-men never believed that the King of England could violate the Laws, and overturn the State at his Pleasure, without making himself thereby liable to punishment, clearly appears from the Laws of St. Edward, and by the manner of holding Parliaments, confirmed by William the Conqueror, and printed by the care of Dom. Luc. D'achery, in the 12 To me of his Spicilege.

Sure it is, that we clearly find these three things, 1st. That by the Agreement and Consent of King John, upon the Com­plaints made against him by the whole State, there were chosen 25 Barons, with Power to represent to the King his unjust Op­pression of the Nation, and to oblige him by force of Arms to redress them, which he himself published by his Letters Patents in the Year 1215. which piece was published by Dom. Luc. D'achery, in the old Norman Tongue. Spicil. Tom. XII p. 583, 584, 585. as it is to be read in Matthew Paris ad An. 1215.

Secondly, We find that the opinion of the English Nation of old was, That they could not only resist their Prince, which abused his Authority, but wholly deprive him of it, by driving him and his wicked Councellors out of the Kingdom; as we see in Matth. Paris, in the Year 1233, where he relates, that Henry III, having call'd a Parliament, upon the Complaints that came in from all Parts against his Ministers, and the Strangers, whose Service he made use of in the management of the Affairs of the Kingdom, the Members of the said Parliament per­ceiving that they could not with safety meet together, refused to come up; Denunciantes Regi per nuncios solennes, quatenus omni dilatione remota ejiceret, by solemn Messengers requiring the King, that without any delay he should turn out those Strangers.

3ly, They judged that if the Sword of St. Edward, called Curtana, signified, that the King reserved to himself the Right of exercising Justice against Delinquents; yet he was liable to the same Penalties with private Persons, whenever he trans­gress'd the Laws of the State, whereof he was the Keeper and Defender, as the same Matth. Paris explains it in the Life of Henry III. much after the same manner as Aurelius Victor re­ports in the Life of Trajan, That that Emperor understood the Ceremony of delivering the Sword to the Prefect of the Pre­torium.

Surely if we consider our History, we shall find,

1. That the Kings alone never had the Power of making Laws.

2. That they had no Power to lay Taxes on the People.

3. That they had not always the Power of making Magi­strates.

4. That they had not the Right of waging War, without the Advice of Parliament, as is observed by Philip de Commines, Lib. 4. cap. 1.

5. That as they were chosen by the People, they had also Power to depose them. Nennius the most ancient English Hi­storian after Gildas, tells us, That Vortigerne was deposed by St. Germain, and the Council of the Britains, because he had [Page 83] married his own Daughter, who placed his Son Vortimer upon the Throne. Edward II. Richard II.

6. That the States have cut off the Succession, may be seen by Henry VII.

Indeed we find that our Ancient Lawyers, our Ministers of State, and our Kings, who of all Men ought well to understand the Form and Constitution of our Kingdom, were so far from believing that the Royalty in England was an Absolute and Un­limited Government, that they have expresly declared that it is a Government bounded by Fundamental and Essential Laws, and composed of a mixture of Monarchy, Aristocracy, and De­mocracy. See how Bracton expresseth himself to this purpose, Lib. 2. c. 16. Fleta l. 1. c. 17. In populo regendo Rex habet Supe­riores, Legem per quam factus est Rex, & Curiam suam, viz. Co­mites & Barones: Comites dicuntur quasi Socii Regis, & qui habet Socium habet Magistrum; & ideo si Rex fuerit sine fraeno, id est sine Lege, debent ei fraenum ponere. In Ruling the People, the King has above him the Law, by which he is made King, and his High Court, viz. the Earls and Barons; Earls are so called as being the King's Companions; and he who has a Companion, has a Master; and therefore if the King be without Bridle, that is, without Law, they must bridle him.

Chancellor Fortescue saith, ‘That the King cannot alter the Laws of his Kingdom, for he governs his People, not only by a Regal, but a Political Power; when it is said the Prince's Will has the Force of a Law, this (saith he) is to be under­stood of a Regal or Absolute Power, from which a political Power much differs, for such can neither change the Law, nor charge the People with new Impositions, against their Wills.’

This is a thing so notorious that Philip de Commines has taken notice of it in his Memoires, Lib. 4. cap. 1. and elsewhere; as also Polydore, lib. 11.

Neither have those only, who have expresly treated of the Government of England, as Secretary Smith, consider'd our Monarchy as a Government mix'd and bounded; but Charles I himself spake of it in these terms: ‘There being three [Page 84] kinds of Government, absolute Monarchy, Aristocracy, and Democracy, and all having particular Conveniences and In­conveniences; the experience and Wisdom of our Ancestors hath so moulded this out of a mixture of those, as to give this Kingdom the Conveniences of all three, without the In­conveniences of any one, as long as the ballance hangs even between the three Estates, and they run jointly in their proper Channels. The ill of absolute Monarchy, is Tyran­ny; of Aristocracy, Faction and Division; of Democracy, Tumults, Violence, and Licentiousness. The Good of Mo­narchy is uniting a Nation under one Head; the good of Aristocracy, is the conjunction of Counsel in the ablest Per­sons for the Publick Good; the good of Democracy, is Liberty, and the Courage and Industry which Liberty begets. The Lords being trusted with Judicatory power, are an Ex­cellent Skreen and Bank, between the Prince and the People, by just Judgment to preserve the Law: wherefore the Power of punishing is already in your hands according to Law.’

Let any one judg after all this, whether our Ancestors ever entertain'd any of those pernicious Maxims, maintain'd by some of our Modern Divines, Maxims that have been the fruitful Mother of Tyrants: viz. That Princes can dispose of the Goods, Body, and Lives of their Subjects at their pleasure; That they are not subject to Laws, or to give any Accompt; That their Succession to the Throne, is by Nature and Genera­tion, and not at all by the Authority or Approbation of the States; That neither their Merits or Demerits can be brought into consideration, to alter any thing about the Right of their Succession, which is unalterable, That without precipitating our selves into eternal Condemnation, we may not oppose their Designs, though directly and openly level'd at the Ruin of the State, and the Change of Religion: In a word, that they may commit all manner of Injustice and Violence they please, and that safely and securely, because none but God alone can punish them.

CHAP. XVI. An Answer to some Difficulties moved against this Truth.

AFter having set this Matter in so clear and evident a Light, it is not without some Shame and Reluctancy that I make a stop to answer some insignificant Difficulties, which those who defend the unlimited Power of the Kings of England, oppose, to the proofs I have alledged. However such as they are, I am willing to consider them, that I may rid the Makers of them, from the least pretext of continuing any longer in so gross and dangerous an Error.

They alledge in the first place the Title of Imperial given to the Crown of England, which, in their Judgments, seems to equa­lize our Kings with the Roman Emperors; and to attribute an ab­solute Empire or Dominion to them: concerning which I have already shewed, that tho this Title were well grounded, yet the consequence they draw from thence would be null, whether we consider the antient Roman Empire, or whether we consider the Empire, as it is now in Germany.

I add here for a further clearing of this Matter, that the same thing happened to the Kings of the West, with regard to the Emperor of the West, as befell the other Kings, who rose after the Destruction of the Roman Empire, and to the Empe­ror of Germany, with respect to the Emperors of the East. The Emperors of the East, as appears from the Embassy of Luit­prand at Constantinople, could not endure that other Princes should take upon them the Title of ( [...]) Kings, or Em­perors, believing that the Name of Kings, left them in some dependence upon the Empire of the East: this obliged the Em­perors [Page 86] of the West, to take upon them the Title of Emperor, to intimate their independency upon the Princes of the East. Which Title the Emperors of the West having afterwards made use of, as a pretence, to raise themselves above the rest of the Princes of Europe, the Western Kings did the same which the Emperors of the West had done before, to assert their Independency.

For not only the Kings of England, but some other Western Kings, have taken upon them the Title of Emperors.

Alphonsus VI, King of Spain, took upon him this Title by a Concession from Pope Ʋrban II, because he had suppressed the Mosorabick-Office: Alphonsus VII, and VIII, assum'd the same Titles, and Alphonsus VIII, was Crowned in that quality by Raymond Arch-Bishop of Toledo, in the Church of Lions, with the consent of Pope Innocent II, as is reported by Garibay lib. 8. hist. cap. 4. We find that Peter de Clugny, writes to this Alphonsus, as Emperor of Spain, Epist. 8. And long time before these Prin­ces, it is certain that the Kings of the Goths, since Richaredus, had taken to themselves the Title of Flavians, in imitation of the Roman Emperors; as may be seen in the Councils of Toledo. Yet Philip II, having demanded this Title in 1564 of Pope Pius IV, it was refused him.

The Kings of Lombardy had assum'd the Title of Flavians, even since Autlaric, according to the Account given us by Paul Diacon. lib. 3. cap. 8, which they did to shew, that they were Emperors in their own Lands and Territories, and that they acknowledged no Soveraign or Superior.

And it seems that in Process of Time, some Western Kings affected that Title for the same reason; and were the rather perswaded so to do, because some Canonists and Lawyers, have impudently maintained, That the Kings of Spain, France and England, were Subjects of the Emperors of the West. Glossa in cap. Venerabil. de Elect. in verbo transtulit, & in caput Venera­bil. qui filii sint legitimi. Bartolus in caput hostes ff. de captivis. Alciat. lib. 2 disjunct c. 22. Baldus in cap. 1 de Pace, juramento fer­vando in usibus Feudorum. Tho he contradict himself, by assert­ing [Page 87] elsewhere That the King of France is not subject to the Emperor.

And thus much for the first Illusion some make use of to per­swade us that the Kings of England possess the same Rights as the Emperors. A second which seems to have some more Ground is this: They say that as the Emperors that were after Vespasian, had the Right to divide the Empire, and to settle it by their Wills on their Heirs, the Kings of England having done the like; it appears thereby, they were in Possession of the same Right the Emperors had: to this purpose they alledge the last Will of William the Conqueror, in favor of his Son William Rufus.

But nothing can be more vain than this Objection.

1. We cannot deny, but that the Election of Kings took Place, during the Reign of the Saxons; not that they did it with that Freeness, as to prefer the Uncle before his Nephew, that was under Age 'tho the Kings Son, and the youngest Brother before the Eldest.

2ly, It is true that William the Conqueror did act in an ex­traordinary manner, in disposing of his Kingdom in Favor of William Rufus, in the same way as one disposeth of a Conquest (and this in prejudice to Robert his Eldest Son) as was also done by William Rufus. But these two Princes dying without Heirs, Henry, who had Married the Daughter of King Alexander of Scotland who had the Rights of the Saxon Kings, and who in Consideration of that Marriage, renounced the Rights he might pretend to England, as heir Presumptive of the Saxon Kings, having obtain'd the Government by the Right of his Wife, the Laws recovered their Strength, and Things returned to their antient Channel, as they were in the time of the Saxons. So that it appears that it is Folly for any one to imagine that the Kings of England may alienate their Estates, as a private Person can alienate his Inheritance. This was evident in the case of King John, who was opposed by the whole State, for pretend­ing to subject the Crown of England to Pope Innocent III.

And indeed if we consider the Thing in it self, and according to the unanimous Opinion of all Lawyers, these last Wills can really be of no Force, without the consent of the States, to authorize them, as we find that the same did intervene in both the fore-mentioned Cases. The reason whereof is invincible, forasmuch as all States do not consider their Kings as Proprie­tors of their Kingdoms, but only as publick Ministers, who are intrusted with a Jurisdiction and Administration for the Good of the publick. And this is the Title by which even Con­querors themselves are at last obliged to hold their Au­thority.

They tell us in the 3d place, that the Kings of England en­titling themselves Kings by the Grace of God: it appears that their Power being come from God, cannot be limited by their Subjects, over whom God has set them. A wonderful way of arguing, and never known till these our Times: at least, it is evident, that he who has defended Nicholas de Lyra against Burgensis, hath made a very different use of these words, Dei Gratia, by the Grace of God, wherewith the Kings of the North prefac [...] their Titles, from what some now a days make of it. For he maintains that it is the Character of a limited and temper'd Government: see how he expresseth himself upon the 8. ch. of the 1 Book of Kings. Titulus Imperatoris modo regendi vitiato (that is to say, illimitato, as he expresses himself before) contradicit; nam titulus ejus est, N. Dei gratia Romanorum Rex & semper Augustus, hoc est Reipublicae non privatae accommodus. Ita & aliorum Regum Protestationes sunt sub Dei gratia quae vitiatum Principatum non admittit. The very Title of the Emperor, saith he, is a Contradiction to an Arbitrary and Unlimited kind of Government; for his Title is, N. by the Grace of God, King of the Romans, always Augustus (that is enlarger of the Empire) which implies that his Government is accommodate to the Common good and not his Private Interest. So likewise we find that the Protestations of other Kings are under Dei Gratia (the Grace of God) which doth not admit of Arbitrary Govern­ment.

There remain but two difficulties more; the first is this, Several Members of the Church of England having perswaded the People, that a necessity was laid upon them to suffer all from the Hands of their Kings; The Kings of England have ac­cordingly usurped those Rights, and were actually in possession of them, when the same began to oppose themselves to King James; this is that they call a right of Prescription. They consider the State, as having lost its Liberty, since their con­senting to the Establishment of Tyranny, and consequently having no right to attempt any thing towards the Recovery of it.

But I desire those who fain would obtrude this Delusion up­on others, as they have upon themselves, to consider,

1. That known Maxime of Right, Possessor malae fidei non praescribit, An unjust Possessor makes no Praescription. Indeed if this be true, That a Man needs only usurp the Goods and Rights of another, to make himself the lawful Master of them; Robbers, Usurers, and those who by abusing of the Law deprive others of their Rights, will be found to be of the best and most thriving Trades in the World. If this be so, the Church of Rome and the Pope, by the Possession they have been in for so many Ages, must carry it by Prescription, to hang, burn, and massacre; neither can any one oppose himself against their just Title.

2. They ought to consider that if Kings be accounted Mi­nors or under Age, because they cannot alienate their Domi­nions, as being only granted them for the good of the State, the People are so, on a much better Title, and Prescription can never prejudice them.

I know it is a Maxime in Law, Praetor cum injustè judicat, jus dicit; that a Judg, though he judges unjustly, his Judgment stands good in Law, and accordingly must be obey'd: from whence some might conclude, That the most unjust Kings can­not [Page 90] be contradicted, and that it is unlawful for any to oppose themselves to their Decisions. But those who should make this Objection, probably would not take notice of the Conse­quence of it. It is for the Interest of the Society, that the Judgments pronounced by the ordinary Judges should be valid, though some of their Judgments may be unjust: but no body ever believed, that this Maxime authorizeth the Magistrate, either Subaltern or Soveraign, to tread under-feet the Laws, and to make publick Profession to judg all things according to their fancy. 2ly. 'Tis a constant truth, That Kings could ne­ver justly touch the Peoples Rights, they being commissionated neither by God nor Man to judg what be the Rights of the People, and having no more right to deprive them thereof than a party at Law, has right to deprive his party of the Right that justly belongs to him.

CHAP. XVII. An Answer to the last Objection.

AFter all that hath been said, I cannot suspect that any should make an Objection, that has so little Appearance of any Probability, as is that which is the 2d of those that remain to be examined by me; some suppose their conceit to be of some weight, who urge the Acts of Parliament under King Charles II, as destructive of this form of the English Govern­ment. The Words are these; That it is not lawful on any Pretence whatsoever to take up Arms against the King, &c. In­deed it cannot be denied but that these Words seem to suppose, that those who swear to them, cannot believe it is lawful to take up Arms against the Kings of England, howsoever they may behave themselves, nor by any opposition to hinder the overturning of the Laws and Government. We may well ac­knowledg that Power to be unbounded, which it is not lawful to oppose by force of Arms; now these Acts of Parliament de­clare that it is not lawful to resist the King; wherefore the King of England must be supposed an unlimited and absolute Monarch, and by Consequence we must conclude, that the Go­vernment of England is wholly changed and destroyed; so that whatsoever we have alledged in the foregoing Discourse, can only be made use of as a History of what is past, but not as a Rule or Precedent for what is to come.

This conceit is so unreasonable, that it seems scarce worth the pains to stop at it; however I shall endeavour in few Words to satisfy those who seem unwarily to be taken in the Snare, which the Malice of a Popish Court had laid for them.

1st. They must know that the Fundamental Laws of any State, are of the Nature of Contracts, Pactions and Capitu­lations, [Page 92] which according to the common opinion of Lawyers are irrevocable. Buxtorf. in Bull. aurea cap. 1. § 7. whence it follows, That all Oaths that are taken against Capitulations of this nature, may be Sins to those who take them, but cannot oblige them, as being unlawful Oaths.

2ly. They cannot suppose that the Parliaments of Charles II did ever think of repealing these Fundamental Laws, without accusing the Members that composed them of having been pre­varicators and betrayers of the Interest of their Country, by changing the limited Monarchy into a true Tyranny.

3ly. They cannot do this Injury to these illustrious Assem­blies, without casting the same Blemish upon the Bishops, in the House of Lords, during those Sessions of Parliament, and making them altogether odious either for their Stupidity, or for their Malice: for their Stupidity, if imprudently they gave their consent to Laws made on purpose to change the Kingly Government into Tyranny; or for their Malice, if they wilfully betrayed the Interest of the State, though they knew well enough what must be the end and aim of these Re­gulations. I desire these Gentlemen to make some Reflection on this truth. Is it possible they should have no Consideration at all, either for the Reputation or Conscience of their An­cestors. They have shewed themselves so jealous of a change in the form of the Government, by making of a successive State, an Elective one, and yet they suppose that the Parliament and the Bishops that sat in them have in sport changed the form of the Government, by making it of a limited Royalty, to become an absolute and unbounded Monarchy.

4ly, They must needs accuse these Parliaments of a strange Folly; for these Gentlemen suppose that the Disorders which then ruled in the State, obliged the Parliament to restore Charles II. They suppose that the Anarchy and various Sects which had the upper hand before his recall; making wise Men not without cause to apprehend the Ruine of the Protestant Religion, as well as the Overthrow of the State, they thought [Page 93] themselves obliged to employ all their strength, for restoring of Charles II. as supposing him a good Protestant and a King whom his Adversities had made wise, in hopes of being go­verned by him according to the ancient Laws of the Kingdom. And yet after this they will perswade us, That the Parliament thought it fit and reasonable, to destroy the Nature of the Roy­alty in England, by making it Mistress of the Laws, and autho­rizing it to destroy the Protestant Religion, whenever the Po­pish Faction should think fit to have it done.

5ly. They must accuse these Parliaments of the commission of a horrid piece of Imprudence, in attempting upon the Liberty of the People: For if this were indeed their Design, were they not obliged at the same time to repeal all the other Laws which restrain the Power of the Kings of England? For we know that a Law cannot be valid nor derogate from other Laws, except in the said Law express mention be made of the said Derogation with a Notwithstanding to the Reglements set down in other Laws that are in Authority on that Subject. De Decimis c. nuper. Ought not they also in like manner to have declared, and that very precisely too, that they dispensed Charles II from keeping his Coronation-Oath, and to have set down in very distinct terms, that in case the King should think fit to call in an Army of French Dragoons to ravish their Wives and Daughters, and to force all his Subjects to change their Religion, they do not think it lawful to take up Arms against him or them, for to repel their Violence.

6ly. They are to take notice that Charles II did never con­ceive that those Acts had changed the Government of the State. Do we not know that he offered to the Parliaments of Westmin­ster and Oxford, to impose such Conditions on the D. of York, as the Parliament should judg necessary, provided only the Succession might be assured to him: now could any thing be more ridiculous and extravagant than this Proposition of the King, had he believed that the Acts already past in his Favour, had given him and his Successors a Right to overturn all, with­out being able to be challenged or opposed by any one for so [Page 94] doing? They themselves did suppose the same thing, and went upon that Ground; what else could be their meaning in Crowning James II, if they supposed that he was in full and rightful Possession of the Government by virtue of the Succession, without being obliged to take the Oaths, by which the Kings of England oblige themselves to keep the Laws of the State.

7ly. They ought to take notice, that they themselves sup­posed that the Fundamental Laws of the State were not abolished. I don't speak here of those loud Murmurs that were heard every where, when James II by an Act of his Council, of his own Authority raised the same Sums, which had been granted to Charles II which he could not do without the Authority of Parliament; nor of the Complaints that were generally made when he turned out my Lord Clarendon from being Lord De­puty of Ireland, banish'd several Protestant Lords out of his Council, and put Papists into all Offices whether Civil or Mi­litary. I only take notice here of the Petition presented in the Name of the Clergy by the seven Bishops upon occasion of reading the Declaration for Liberty of Conscience; for had they been of another opinion, with what pretence of rea­son could they have complained of James II, governing with an Arbitrary Power, and his dispensing with the Laws? Why in their Petition did they alledg those Acts of Parliament which had condemn'd that Power in 1673, when Charles II published his Proclamation for Liberty of Conscience. These Acts of theirs, upon this Supposal, could not be accounted of other­wise, than as Acts of Rebellion, nor could they be made use of with a good Conscience, after they had been convinc'd that the Fundamental Laws being repealed and abolished, they were now subject to an arbitrary and unbounded Go­vernment.

Indeed we cannot enough commend the Constancy of the Clergy and those worthy Prelates, who refused to read the Declaration of James II for Liberty of Conscience: that De­claration being grounded upon the Power he attributed to him­self [Page 95] of dispensing with the Laws. But on the other Hand nei­ther can we imagine any more convincing Proof to make out that at that Time they did not conceive, any more than the whole State, who so generally applauded them, that they themselves, as well as the whole State, had cast themselves headlong into Slavery by their Oaths, because the Power of the Kings of England was become unbounded and Arbitrary.

In a Word, how ample an extent soever these Gentlemen may give to the Oath they have taken in pursuance of an Act of Parliament in the 13 Year of Charles II, they must remember one Thing which is always supposed, which is the natural Condition of all Oaths, rebus sic stantibus, c. ad naturam, Things continuing in the same State; for indeed as soon as things have changed their Nature, or that Circumstances are altered, there remains no more Obligation in Cases, where exceptions are naturally supposed. I am bound to Obey my Father in all Things, this being what the Scripture expresly teacheth me; but I am not bound to Obey him any farther, than he Acts like a Father, neither am I oblig'd to keep this Command of obeying him in all Things, but only so far as the Things enjoyned by him are just and lawful. I am bound to obey the King accord­ing to the Laws, neither may I lawfully resist Him, in his exe­cuting of the Laws, or upon any pretext whatsoever take up Arms against him: but if in stead of governing according to Law, he useth his utmost Endeavours to overthrow the Society, by destroying the Laws which are the Band of it, then all the Oaths I have taken are no longer of any Force, 'tis my Right to Endeavour to preserve the Society, which he goes about to overthrow, and to oppose his Violence by taking up Arms a­gainst him, and to put a stop to the unjust Proceedings of a Prince, who declares himself an Enemy to the State, by the ways which providence affords me for my Security.

But if after all these Considerations, these Gentlemen will still maintain, that they have taken these Oaths in so strait a Sense, that nothing is capable of satisfying their Consciences; we have great Reason to be Astonished, how it was possible [Page 96] that Men of so Tender and Delicate a Conscience, could take such Oaths, which taken in their Sense do visibly overturn both the State and Religion. Indeed there is no need of any ones being a Prophet to make him conceive, that they were rather obliged in Conscience to refuse the taking of such Oaths, and to fly to the End of the World, rather than take them, than they are bound to keep them, with the hazard of the utter Ruin of their Native Country and their Religion; or see them Perish without having any Power to Defend them, as they are obliged by the Laws of nature, and by all the Duties of the Society and Religion.

It has already been made out by several Writings, that God seeming to spare and wink at the weakness of those who be­liev'd themselves thus fast bound and tied by their Oaths, and destin'd to become Victimes to Popery and Tyranny, has been pleas'd happily to deliver them from the trouble wherein they had involed themselves in sending them a Deliverer, whose Rights, in a War which James II. unjustly wageth against him, are above all those Difficulties, which seem to be matter of Scruple to them: so that it is not needful for me to insist any longer on this Matter.

CHAP. XVIII. A Reflection on some Remarks made out in this Treatise.

I Am perswaded, that every equal Reader cannot but acknow­ledg, that to judg aright of Things, the Proceedings of England, with respect to James II. have been the most just and lawful that could be.

The Things I have made out in this Treatise, are summarily contain'd in the following Articles.

1. That the Constitution and Establishment of any Govern­ment, is the Effect of the Original Consent of the People, though the Authority of the Magistrates be a Thing established by God.

2. That this Establishment supposeth the Subsistence of the Laws, which are the End of the Government in the Design of God; for indeed Kingdoms without Justice, are no better than great Robberies, as St. Austin calls them, De Civit. Dei, Lib. 4. cap. 4.

3. That these Fundamental Laws, for the Subsistence of the Society, are a Bond which so strictly ties the Soveraigns, that nothing is able to dispense with their Obligation to them.

4. That when the Soveraigns do violate them, they break the Ties, whereby their Subjects are bound to their Lawful Au­thority.

5. That the Subjects can never be deprived of their Right to hinder the Ruin of the Society, and of the Laws, for the con­servation of which only they have put their Rights into the Hands of the Prince.

6. That there was never any State that subsisted under other conditions than these.

[Page 98]7. That England in particular, and Scotland, have always had this Right.

Now these Things supposed, it is evident,

1. That James II. has forfeited all his Rights to the Crown, even before his Desertion.

2. That the Lords and People justly took up Arms against him, to oblige him by Force to reform the Disorders he had caused.

3. That the States had Power, without any regard had to Him, to raise the King and Queen to the Throne.

4. That the Subjects are more than enough freed from their Oath of Allegiance to King James.

5. That they have Right, and are under Obligation, to take up Arms, and oppose themselves against James II. and to main­tain the Authority of the King and Queen.

6. That those who oppose themselves to this, are declared Enemies of the State, and of our Religion, and the Authors and Abettors of Tyranny and Popery.

7. That those who pretend themselves scrupulous in these Points, are the Cause of the Division, and consequently of the Ruin of the State and Religion, whereby they grievously sin against God, and therefore are obliged in Conscience to repent and make amends for the Mischief their Division has caused.

The thing is very evident, and forasmuch as it is of the highest importance for their Salvation, I beg of them well to weigh and consider these following Articles, and witness their Repentance in all these respects.

1. Then they ought to repent, for that they making profes­sion to have so strong an Affection for James II. they have made him fall upon the Designs of changing the Government into a Despotical and Arbitrary Power, and thus by their Max­ims have advanced and precipitated his Ruin. They are the Men who have made him conceive the Design of esta­blishing a Tyranny in England; they have given birth to his hope of being able to compass it according to his Hearts desire, and his Ruin proceeding from the opposition that was made [Page 99] against these his Designs, 'tis them he may thank for all the Mi­series into which he is plunged; and consequently they have great reason to repent, for having precipitated his Ruin by their false and deceitful Foundation. See what Gerson saith, In opusc. contr. Adulat. consid. 10. Clericus ille Regem suum aut Principem amaret minimè, qui perversas, & tales vellet dare doctrinas, aut toto posse & scientia illas non impediret—quia non est modus certior, quo Rex aut Princeps se perderet in corpore & in anima, totamque ejus damnationem, quam habendo falsas tales opiniones, & eas opere exequendo. Cur? Quoniam Dominatio sua in Tyrannidem vertere­tur & in infidelitatem. That Clergy-man would be far from loving his King or Prince, who should teach him such perverse and false Doctrines, or that with all his Power and Skill should not oppose them; because there is not a more sure way for a Prince to destroy himself, Soul and Body, and to procure his total Damnation, than by entertaining such false Opinions, and reducing them into practice. Why so? Because his Govern­ment by this means would be changed into Tyranny and Perfi­diousness.

2. They ought to repent, for their having contributed so much towards the establishing of Tyranny, not only because that would have destroyed the Publick Liberty, but because his Design at the same time was, to overthrow the Protestant Re­ligion, and substitute in the place of it the Idolatry, Supersti­tion and Tyranny of Popish Usurpation. This was a thing they could not do without imitating the Conduct of the Popish Clergy, who since the Popes have undertaken to tread under their Feet the Rules of the Gospel, and of the Church, have endeavoured to inspire Princes with an indifferency for their Oaths, and contempt of the Laws, which are a Safeguard and Security of the Civil Society.

3. They must repent, at least some of them, for having ob­stinately endeavoured to hide and disguise the Conspiracies which were design'd for the Ruin of our Religion and Liberty.

4. They must repent for having writ in favour of an Opinion contrary to the Judgment of the Ancient Reformers of England; and for having traduc'd, as Rebels, the Protestant Churches beyond the Sea, for their maintaining the Maxims which the [Page 100] first Reformers of England have Asserted, and for which they have Writ, in defence of their Protestant Brethren.

5. They must repent, for that by their Sermons and Writings they have insinuated to the People those Maxims which have put them upon betraying the Natural Rights of the Society, and in the Sequel, upon imprudently exposing themselves to betray the Interest of the Protestant Religion, which they were obliged to deliver safe to their Posterity.

6. They must repent, for having by this means encouraged the Judges to tread underfoot the Authority of the Laws, and to dispence with them, as having taught them to look upon the Laws, as the Concessions of Princes, and Acts of their Will, and by Consequence revocable at their good Pleasure.

7. They must repent, at least some of them, for having mounted to Ecclesiastical Dignities, by publickly appearing in the Lists for defence of these pernicious and tyrannical Maxims, directly level'd at the Ruin and Overthrow of our Liberty and Religion.

8. They must repent, for that their Opinions at this Day are the Causes of the present Conspiracies, Rebellions and Treasons against the Government, by which God has been pleas'd so graciously to secure our Liberty and Religion, from the inevi­table Ruin wherewith they were threatned.

However, we have cause to bless God, that those who are guilty of these Sins, are but inconsiderable in their Numbers. And I ardently wish for them, they may once seriously enter into themselves, and that by the Example of their Brethren, they may, for Time to come, employ all their Endeavours to make reparation for the Mischief and Scandal their Errors and Preju­dices have in a great measure brought both upon the Church and State.