The Laws of every Nation are the measure of Magistratical Power.
OUR author lays much weight upon the word hereditary; but the question is, what is inherited in an hereditary kingdom, and how it comes to be hereditary. 'Tis in vain to say the kingdom; for we do not know what he means by the kingdom: 'tis one thing in one place, and very different in others; and I think it not easy to find two in the world that in power are exactly the same. If he understand all that is comprehended within the precincts over which it reaches, I deny that any such is to be found in the world: If he refer to what preceding kings enjoyed, no determination can be made, till the first original of that kingdom be examined, that it may be known what that first king had, and from whence he had it.
If this variety be denied, I desire to know whether the kings of Sparta and Persia had the same power over their subjects; if the same, whether both were absolute, or both limited; if limited, how came the decrees of the Persian kings to pass for laws? if absolute, how could the Spartan kings be subject to fines, imprisonment, or the sentence of death; and not to have power to send for their own supper out of the common hall? Why did Xenophon call Agesilaus a good and faithful king, obedient to the laws of his country, when upon the command of the ephori, he left the war that he had with so much glory begun in Asia, if he was subject to none? How came the ephori to be established to restrain the power of kings, if it could no way be restrained, if all owed obedience to them, and they to none? Why did Theopompus his wife reprove him for suffering his power to be diminished by their creation, if it could not be diminished? Or why did he say he had made the power more permanent in making it less odious, if it was perpetual and unalterable? We may go farther, and taking Xenophon and Plutarch for our guides, assert that the kings of Sparta never had the powers of war or peace, life and death, which our author esteems inseparable from regality, and conclude either that no king has them, or that all kings are not alike in power. If they are not in all places the same, kings do not reign by an universal law, but by the particular laws of each country; which give to every one so much power, as in the opinion of the givers conduces to the end of their institution, which is the publick good.
It may be also worth our inquiry how this inherited power came to be hereditary. We know that the sons of Vespasian and Constantine inherited the Roman empire, tho their fathers had no such title; but gaining the empire by violence, which Hooker says is mere tyranny that can create no right, they could devolve none to their children. The kings of France of the three races have inherited the crown; but Meroveus, Pepin, and Hugh Capet could neither pretend title nor conquest, or any other right than what was conferred upon them by the clergy, nobility, and people; and consequently whatsoever is inherited from them can have no other original; for that is the gift of the people which is bestowed upon the first, under whom the successors claim, as if it had been by a peculiar act given to every one of them. It will be more hard to shew how the crown of England is become hereditary, unless it be by the will of the people; for tho it were granted that some of the Saxon kings came in by inheritance (which I do not, having, as I think, proved them to have been absolutely elective) yet William the Norman did not, for he was a bastard, and could inherit nothing. William Rufus and Henry did not; for their elder brother Robert by right of inheritance ought to have been preferred before them: Stephen and Henry the second did not; for Maude the only heiress of Henry the first was living when both were crowned: Richard, John, and those who followed, did not, for they were bastards born in adultery. They must therefore have received their right from the people, or they could have none at all; and their successors fall under the same condition.
Moreover, I find great variety in the deduction of this hereditary right. In Sparta there were two kings of different families, endowed with an equal power. If the Heraclidae did reign as fathers of the people, the Aeacidae did not; if the right was in the Aeacidae, the Heraclidae could have none; for 'tis equally impossible to have two fathers as two thousand. 'Tis in vain to say that two families joined, and agreed to reign jointly: for 'tis evident the Spartans had kings before the time of Hercules or Achilles, who were the fathers of the two races. If it be said that the regal power with which they were invested did entitle them to the right of fathers, it must in like manner have belonged to the Roman consuls, military tribunes, dictators, and praetors; for they had more power than the Spartan kings; and that glorious nation might change their fathers every year, and multiply or diminish the number of them as they pleased. If this be most ridiculous and absurd, 'tis certain that the name and office of king, consul, dictator, or the like, does not confer any determined right upon the person that hath it: Everyone has a right to that which is allotted to him by the laws of the country by which he is created.
As the Persians, Spartans, Romans or Germans, might make such magistrates, and under such names as best pleased themselves, and accordingly enlarge or diminish their power; the same right belongs to all nations, and the rights due unto, as well as the duties incumbent upon everyone, are to be known only by the laws of that place. This may seem strange to those who know neither books nor things, histories nor laws, but is well explain'd by Grotius; who denying the sovereign power to be annexed to any man, speaks of divers magistrates under several names that had, and others that under the same names had it not; and distinguishes those who have the summum imperium summo modo, from those who have it modo non summo: and tho probably he looked upon the first sort as a thing merely speculative, if by that summo modo, a right of doing what one pleases be understood; yet he gives many examples of the other, and among those who had liberrimum imperium, if any had it, he names the kings of the Sabaeans; who nevertheless were under such a condition, that tho they were, as Agatharchides reports, obeyed in all things, whilst they continued within the walls of their palace, might be stoned by any that met them without it. He finds also another obstacle to the absolute power, cum rex partem habeat summi imperii, partem senatus, sive populus; which parts are proportioned according to the laws of each kingdom, whether hereditary or elective, both being equally regulated by them.
The law that gives and measures the power, prescribes rules how it should be transmitted. In some places the supreme magistrates are annually elected, in others their power is for life; in some they are merely elective, in others hereditary under certain rules or limitations. The ancient kingdoms and lordships of Spain were hereditary; but the succession went ordinarily to the eldest of the reigning family, not to the nearest in blood. This was the ground of the quarrel between Corbis the brother, and Orsua the son of the last prince, decided by combat before Scipio. I know not whether the Goths brought that custom with them when they conquered Spain, or whether they learnt it from the inhabitants; but certain it is, that keeping themselves to the families of the Balthi, and Amalthi, they had more regard to age than proximity; and almost ever preferred the brother, or eldest kinsman of the last king before his son.
The like custom was in use among the Moors in Spain and Africa, who according to the several changes that happened among the families of Almohades, Almoravides, and Benemerini, did always take one of the reigning blood; but in the choice of him had most respect to age and capacity. This is usually called the law of tanistty; and, as in many other places, prevailed also in Ireland, till that country fell under the English government.
In France and Turkey the male that is nearest in blood, succeeds; and I do not know of any deviation from that rule in France, since Henry the First was preferred before Robert his elder brother, grandchild to Hugh Capet: but notwithstanding the great veneration they have for the royal blood, they utterly exclude females, lest the crown should fall to a stranger; or a woman that is seldom able to govern herself, should come to govern so great a people. Some nations admit females, either simply, as well as males; or under a condition of not marrying out of their country, or without the consent of the estates, with an absolute exclusion of them and their children if they do; according to which law, now in force among the Swedes, Charles Gustavus was chosen king upon the resignation of Queen Christina, as having no title; and the crown settled upon the heirs of his body, to the utter exclusion of his brother Adolphus, their mother having married a German. Tho divers nations have differently disposed their affairs; all those that are not naturally slaves, and like to beasts, have preferred their own good before the personal interests of him that expects the crown, so as upon no pretence whatever to admit of one, who is evidently guilty of such vices as are prejudicial to the state. For this reason the French, tho much addicted to their kings, rejected the vile remainders of Meroveus his race, and made Pepin the son of Charles Martel king: And when his descendants fell into the like vices, they were often deposed, till at last they were wholly rejected, and the crown given to Capet and to his heirs male as formerly. Yet for all this Henry his grandchild, being esteemed more fit to govern than his elder brother Robert, was, as is said before, made king, and that crown still remains in his descendants; no consideration being had of the children of Robert, who continued dukes of Burgundy during the reigns of ten kings. And in the memory of our fathers, Henry of Navarre was rejected by two assemblies of the estates, because he differed in religion from the body of the nation, and could never be received as king, till he had renounced his own, tho he was certainly the next in blood; and that in all other respects he excelled in those virtues which they most esteem.
We have already proved, that our own history is full of the like examples, and might enumerate a multitude of others, if it were not too tedious: and as the various rules, according to which all the hereditary crowns of the world are inherited, shew, that none is set by nature, but that every people proceeds according to their own will; the frequent deviations from those rules do evidently testify, that salus populi est lex suprema; and that no crown is granted otherwise, than in submission to it.
But tho there were a rule, which in no case ought to be transgressed, there must be a power of judging to whom it ought to be applied. 'Tis perhaps hard to conceive one more precise than that of France, where the eldest legitimate male in the direct line is preferred; and yet that alone is not sufficient. There may be bastardy in the case: Bastards may be thought legitimate, and legitimate sons bastards. The children born of Isabel of Portugal during her marriage with John the Third of Castile were declared bastards; and the title of the house of Austria to that crown, depends upon that declaration. We often see that marriages which have been contracted, and for a long time taken to be good, have been declared null; and the legitimation of the present king of France, is founded solely upon the abolition of the marriage of Henry the Fourth with Marguerite of Valois, which for the space of twenty seven years was thought to have been good. Whilst Spain was divided into five or six kingdoms, and the several kings linked to each other by mutual alliances, incestuous marriages were often contracted, and upon better consideration annulled; many have been utterly void, through the preengagement of one of the parties. These are not feigned cases, but such as happen frequently; and the diversity of accidents, as well as the humours of men, may produce many others, which would involve nations in the most fatal disorders, if everyone should think himself obliged to follow such a one who pretended a title, that to him might seem plausible, when another should set up one as pleasing to others, and there were no power to terminate those disputes to which both must submit, but the decision must be left to the sword.
This is that which I call the application of the rule, when it is as plain and certain as humane wisdom can make it; but if it be left more at large, as where females inherit, the difficulties are inextricable: and he that says, the next heir is really king when one is dead, before he be so declared by a power that may judge of his title, does, as far as in him lies, expose nations to be split into the most desperate factions, and every man to fight for the title which he fancies to be good, till he destroy those of the contrary party, or be destroyed by them. This is the blessed way proposed by our author to prevent sedition: But, God be thanked, our ancestors found a better. They did not look upon Robert the Norman as king of England after the death of his father; and when he did proudly endeavour, on pretence of inheritance, to impose himself upon the nation, that thought fit to prefer his younger brothers before him, he paid the penalty of his folly, by the loss of his eyes and liberty. The French did not think the grandchild of Pharamond to be king after the death of his father, nor seek who was the next heir of the Merovingian line, when Childeric the third was dead; nor regard the title of Charles of Lorraine after the death of his brother Lothair, or of Robert of Burgundy eldest son of King Robert; but advanced Meroveus, Pepin, Capet and Henry the first, who had no other right than what the nobility and people bestowed upon them. And if such acts do not destroy the pretences of all who lay claim to crowns by inheritance, and do not create a right, I think it will be hard to find a lawful king in the world, or that there ever have been any; since the first did plainly come in like Nimrod, and those who have been everywhere since histories are known to us, owed their exaltation to the consent of nations, armed or unarmed, by the deposition or exclusion of the heirs of such as had reigned before them.
Our author not troubling himself with these things, or any other relating to the matter in question, is pleased to slight Hooker's opinions concerning coronation and inauguration, with the heaps of Scripture upon which he grounds them; whereas those solemnities would not only have been foolish and impertinent, but profane and impious, if they were not deeds by which the right of dominion is really conferred. What could be more wickedly superstitious, than to call all Israel together before the Lord, and to cast lots upon every tribe, family and person, for the election of a king, if it had been known to whom the crown did belong by a natural and unalterable right? Or if there had been such a thing in nature, how could God have caused that lot to fall upon one of the youngest tribe forever to discountenance his own law, and divert nations from taking any notice of it? It had been absurd for the tribe of Judah to chuse and anoint David, and for the other tribes to follow their example after the death of Ishbosheth, if he had been king by a right not depending on their will. David did worse in slaying the sons of Rimmon, saying, they had killed a righteous man lying upon his bed, if Ishbosheth, whose head they presented, had most unrighteously detained from him, as long as he lived, the dominion of the ten tribes: The king, elders and people, had most scornfully abused the most sacred things, by using such ceremonies in making him king, and compleating their work in a covenant made between him and them before the Lord, if he had been already king, and if those acts had been empty ceremonies conferring no right at all.
I dare not say that a league does imply an absolute equality between both parties; for there is a foedus inequale, wherein the weaker, as Grotius says, does usually obtain protection, and the stronger honour; but there can be none at all, unless both parties are equally free to make it, or not to make it. David therefore was not king, till he was elected, and those covenants made; and he was made king by that election and covenants.
This is not shaken by our author's supposition, that the people would not have taken Joash, Manasseh or Josiah, if they had had a right of chusing a king; since Solomon says, Woe unto the kingdom whose king is a child. For, first, they who at the first had a right of chusing whom they pleased to be king, by the covenant made with him whom they did chuse, may have deprived themselves of the farther execution of it, and rendered the crown hereditary even to children, unless the conditions were violated upon which it was granted. In the second place, if the infancy of a king brings woe upon a people, the government of such a one cannot be according to the laws of God and nature; for governments are not instituted by either for the pleasure of a man, but for the good of nations; and their weal, not their woe, is sought by both: and if children are anywhere admitted to rule, 'tis by the particular law of the place, grounded perhaps upon an opinion, that it is the best way to prevent dangerous contests; or that other ways may be found to prevent the inconveniences that may proceed from their weakness. Thirdly, It cannot be concluded that they might not reject children, because they did not: such matters require positive proofs, suppositions are of no value in relation to them, and the whole matter may be altered by particular circumstances. The Jews might reasonably have a great veneration for the house of David: they knew what was promised to that family; and whatever respect was paid, or privilege granted on that account, can be of no advantage to any other in the world. They might be farther induced to set up Joash, in hope the defects of his age might be supplied by the virtue, experience and wisdom of Jehoiada. We do not know what good opinion may have been conceived of Manasseh when he was twelve years old; but much might be hoped from one that had been virtuously educated, and was probably under the care of such as had been chosen by Hezekiah: and tho the contrary did fall out, the mischiefs brought upon the people by his wicked reign, proceeded not from the weakness of his childhood, but from the malice of his riper years. And both the examples of Joash and Josiah prove, that neither of them came in by their own right, but by the choice of the people. Jehoiada gathered the Levites out of all the cities of Judah, and the chief of the fathers of Israel, and they came to Jerusalem: And all the congregation made a covenant with the king in the house of God, and brought out the king's son, and put upon him the crown, and gave him the testimony, and made him king; whereupon they slew Athaliah. And when Ammon was slain, the people of the land slew them that had conspired against King Ammon; and the people of the land made Josiah his son king in his stead: which had been most impertinent, if he was of himself king before they made him so. Besides, tho infancy may be a just cause of excepting against, and rejecting the next heir to a crown, 'tis not the greatest or strongest. 'Tis far more easy to find a remedy against the folly of a child (if the state be well regulated) than the more rooted vices of grown men. The English, who willingly received Henry the sixth, Edward the fifth and sixth, tho children, resolutely opposed Robert the Norman: And the French, who willingly submitted to Charles the ninth, Lewis the thirteenth and fourteenth in their infancy, rejected the lewd remainders of Meroveus his race; Charles of Lorraine with his kindred descended from Pepin, Robert duke of Burgundy with his descendants, and Henry of Navarre, till he had satisfied the nobility and people in the point of religion. And tho I do not know that the letter upon the words, Vae regno cujus rex puer est, recited by Lambarde was written by Eleutherius bishop of Rome; yet the authority given to it by the Saxons, who made it a law, is much more to be valued than what it could receive from the writer; and whoever he was, he seems rightly to have understood Solomon's meaning, who did not look upon him as a child that wanted years, or was superannuated, but him only who was guilty of insolence, luxury, folly and madness: and he that said, A wise child was better than an old and foolish king," could have no other meaning, unless he should say, it was worse to be governed by a wise person than a fool; which may agree with the judgment of our author, but could never enter into the heart of Solomon.
Lastly, tho the practice of one or more nations may indicate what laws, covenants or customs were in force among them, yet they cannot bind others: The diversity of them proceeds from the variety of men's judgments, and declares, that the direction of all such affairs depends upon their own will; according to which every people for themselves forms and measures the magistracy, and magistratical power; which, as it is directed solely for the good, hath its exercises and extent proportionable to the command of those that institute it; and such ordinances being good for men, God makes them his own.
 Grot. de Jur. bel. et pac. I. 1. c. 1. ["The supreme power in the supreme manner" ... "not in the supreme manner. "Grotius, De jure, bk. 1, ch. 3, sec. 14.]
 [Agatharchides, quoted by Grotius, bk. 1, ch. 3, sec. 16.]
 T. Liv. 1. 28. [Livy, History of Rome, bk. 28, ch. 21.]
 Saavedra corona Gothica. [Diego de Saavedra y Fajardo, Corona gothica, castellana, y austriaca, 1677.]
 Marian. Hist. Hispan. [Juan de Mariana, Historia General de España (1601), bk. 11, ch. 1, and bk. 13, ch. 7.]
 [The welfare of the people is the supreme law.]
 [Patriarcha, ch. 14.]
 [2 Samuel 4.]
 ["Unequal treaty." Grotius, De jure, bk. 1, ch. 3, sec. 21.]
 [Patriarcha, ch. 14.]
 2 Chron. [2 Chronicles 23:2-3, 11-15.]
 2 Chron. [2 Chronicles 33:25.]
 Lamb. leg. Saxon. [William Lambarde, Archaionomia, sive, De priscis Anglorum legibus.]
 [Ecclesiastes 4:13.]