The Contracts made between Magistrates, and the Nations that created them, were real, solemn, and obligatory.

OUR author having with big words and little sense inveigh'd against popular and mix'd governments, proceeds as if he had proved they could not, or ought not to be. If it be, says he, unnatural for the multitude to chuse their governors, or to govern, or to partake in the government; what can be thought of that damnable conclusion which is made by too many, that the multitude may correct or depose their princes if need be? Surely the unnaturalness and injustice of this position cannot sufficiently be expressed. For admit that a king make a contract or paction with Ms people originally in his ancestors, or personally at his coronation (for both these pactions some dream of, but cannot offer any proof of either) yet by no law of any nation can a contract be thought broken, except first a lawful trial be had by the ordinary judge of the breakers thereof; or else every man may be both party and judge in his own case, which is absurd once to be thought; for then it will lie in the hands of the headless multitude, when they please, to cast off the yoke of government that God hath laid upon them, and to judge and punish him, by whom they should be judged and punished themselves.[1] To this I first answer briefly, that if it be natural for the multitude to chuse their governors, or to govern, or to participate of the government as best pleases themselves; or that there never was a government in the world that was not so set up by them, in pursuance of the power naturally inherent in themselves; what can be thought of that damnable conclusion, which has been made by fools or knaves, that the multitude may not, if need be, correct or depose their own magistrates? Surely the unnaturalness and injustice of such a position cannot be sufficiently expressed. If that were admitted, all the most solemn pacts and contracts made between nations and their magistrates, originally or personally, and confirmed by laws and mutual oaths, would be of no value. He that would break the most sacred bonds that can be amongst men, should by perjury and wickedness become judge of his own case, and by the worst of crimes procure impunity for all. It would be in his power by folly, wickedness and madness, to destroy the multitude which he was created and sworn to preserve, tho wise, virtuous and just, and headed by the wisest and justest of men; or to lay a yoke upon those who by the laws of God and nature ought to be free: He might in his own case judge that body by which he ought to be judged; and who in consideration of themselves and their own good, made him to be whatsoever he is more than every one of them: The governments instituted for the preservation of nations, would turn to their destruction: It would be impossible to check the fury of a corrupt and perfidious magistrate: The worst of men would be raised to a height that was never deserved by the best; and the assurance of indemnity would, by increasing their insolence, turn their other vices into madness, as has been too often seen in those who have had more power than they deserved, and were more hardly brought to account for their actions than ought to have been; tho I never heard of any who had so much as our author asserts to be in all, nor that any was absolutely assured he should not be question'd for the abuse of what he had.

Besides, if every people may govern, or constitute and chuse one or more governors, they may divide the powers between several men, or ranks of men, allotting to every one so much as they please, or retaining so much as they think fit. This has been practised in all the governments, which under several forms have flourished in Palestine, Greece, Italy, Germany, France, England, and the rest of the world. The laws of every place show what the power of the respective magistrate is, and by declaring how much is allowed to him, declare what is denied; for he has not that which he has not, and is to be accounted a magistrate whilst he exercises that which he has.

If any doubts do hereupon arise, I hope to remove them, proving in the first place, that several nations have plainly and explicitly made contracts with their magistrates.

2. That they are implicit, and to be understood, where they are not plainly expressed.

3. That they are not dreams, but real things, and perpetually obliging.

4. That judges are in many places appointed to decide the contests arising from the breach of these contracts; and where they are not, or the party offending is of such force or pride that he will not submit, nations have been obliged to take the extremest courses.

To the first: I suppose it will not be denied, that the annual magistrates of divers commonwealths are under some compact, and that there is a power of constraining them to perform the contents, or to punish them for the violation. The modest behaviour of the Roman consuls and dictators (as long as their laws were in force) might not probably proceed from their good nature. Tho the people had not been, as our author says, mad, foolish, and always desirous to chuse the worst men for being most like to themselves,[2] but admirably wise and virtuous, 'tis not to be imagined that in the space of three or four hundred years they should never have fallen upon one who would have transgressed, if he could have done it safely, tho they had used the utmost caution in their choice. But the power of the consuls being only for a year, that of the dictator for six months at most, and the commission that he should take care the commonwealth might suffer no damage,[3] show the end and condition upon which they were chosen; and tho their power is by some thought to have been absolute, yet the consuls were frequently opposed and brought into order by the senate, tribunes, or people, and sometimes the dictator himself. Camillus in his fourth dictatorship was threatened by the tribunes with a great fine, and by that means obliged to abdicate his magistracy.[4] I have already mention'd Marcus Fabius Maximus, who in the behalf of his son Quintus condemned to die by Papirius the dictator, appealed to the people:[5] And when the conduct of Fabius in the war against Hannibal was not approved, Naenius the tribune thought he made a very modest proposition, in that he did not desire his magistracy should be abrogated; but that the master of the horse should be made equal to him in power, which was done accordingly. 'Tis agreed by all, that the consuls were in the place of kings, and that the power of the dictator was at the least equal to what theirs had been. If they therefore were under such a rule, which they could not transgress, or might be reduced to order if they did, and forced to submit to the people as the kings had done, the kings were also made upon the same conditions, and equally obliged to perform them.

The Scripture is more clear in the case. The judges are said to have been in power equal to kings; and I may perhaps acknowledge it, with relation to the Deuteronomical king, or such as the people might have chosen without offending God. The Gileadites made a covenant with Jephthah, that he should be their head and captain: He would not return to his country till they had done it. This was performed solemnly before the lord in Mizpeh, and all Israel followed them. They might therefore make a covenant with their kings, for the difference of name does not increase or diminish the right. Nay, they were in duty obliged to do it: The words of the 17th of Deuter. He shall not multiply wives, &c. that his heart be not lifted up above his brethren, can have no other signification, than that they should take care he did it not, or, as Josephus says, hinder him if he attempt it; for the law was not given to the king who was not, but to those who might make him if they thought fit.[6] In pursuance of this law --

[The rest of this chapter is wanting in the original manuscript.][7]

2dly. There was no absurdity in this, tho it was their own case; but to the contrary, because it was their own case: that is, concerning themselves only, and they had no superiour.[8] They only were the competent judges, they decided their controversies, as every man in his own family doth, such as arise between him and his children, and his servants. This power hath no other restriction, than what is put upon it by the municipal law of the country, where any man [lives], and that hath no other force, than as he is understood to have consented unto it. Thus in England every man (in a degree) hath a right of chastising them; and in many places (even by the law of God) the master hath a power of life and death over his servant: It were a most absurd folly, to say, that a man might not put away, or in some places kill an adulterous wife, a disobedient son, or an unlawful servant, because he is party and judge; for the case doth admit of no other, unless he hath abridged his own right by entering into a society, where other rules are agreed upon, and a superiour-judge constituted, there being none such between king and people: That people must needs be the judge of things happening between them and him whom they did not constitute that [he] might be great, glorious, and rich; but that [he] might judge them, and fight their battles; or otherwise do good unto them as they should direct. In this sense, he that is singulis major,[9] ought to be [obeyed] by every man, in his just and lawful commands tending to the publick good: And must be suffered to do nothing against it, nor in any respect more than the law doth allow.

For this reason Bracton saith, "that the king hath three superiours, to wit, Deum legem, & parliament";[10] that is, the power originally in the people of England, is delegated unto the parliament. He is subject unto the law of God as he is a man; to the people that makes him a king, in as much as he is a king: the law sets a measure unto that subjection, and the parliament judges of the particular cases thereupon arising: He must be content to submit his interest unto theirs, since he is no more than any one of them, in any other respect than that he is by the consent of all, raised above any other.

If he doth not like this condition, he may renounce the crown; but if he receive it upon that condition (as all magistrates do the power they receive), and swear to perform it, he must expect that the performance will be exacted, or revenge taken by those that he hath betrayed.

If this be not so, I desire to know of our author, how one or more men can come to be guilty of treason against the king, as lex facit ut sit rex.[11] No man can owe more unto him than unto any other, or he unto every other man by any rule but the law; and if he must not be judge in his own case, neither he nor any other by power received from him, would ever try any man for an offence against him, or the law.

If the king, or such as he appoints, cannot judge him, he cannot be judged by the ways ordinarily known amongst us. If he or other by authority from him may judge, he is judge in his own case, and we fall under that which he accounts the utmost of all absurdities: if a remedy be found for this, he must say that the king in his own case may judge the people, but the people must not judge the king, because it is theirs; that is to say, the servant entertained by the master may judge him, but the master must not judge the servant whom he took only for his own use. The magistrate is bound by no oath or contract to the people that created him, but the people is bound to its own creature, the magistrate.

This seems to be the ground of all our author's follies; he cannot comprehend that magistrates are for or by the people, but makes this conclusion, as if nations were created by or for the glory or pleasure of magistrates; and after such a piece of nonsense, it ought not to be thought strange if he[12] represent, as an absurd thing, that the headless multitude may shake off the yoke when they please. But I would know how the multitude comes under the yoke; it is a badge of slavery. He says that the power of kings is for the preservation of liberty and property. We may therefore change or take away kings without breaking any yoke, or that [is] made a yoke, which ought not to be one; the injury is therefore in making or imposing, and there can be none in breaking it.

That if there be not an injury, there may perhaps be an inconvenience; if the headless multitude may shake off the yoke.[13] I know not why the multitude should be concluded to be headless; it is not always so. Moses was head of the multitude that went out of Egypt; Othniel led them against the king of Mesopotamia; under the conduct of Phoebidas;[14] they obtain'd a victory against the Moabites; they had the like success under Shamgar, Barak, Gideon, Jephthah, Samuel, Samson, and others against Canaanites, Midianites, Philistines and others; the multitude that opposed Saul and Ishbosheth had David for its head: and the ten tribes that rejected Rehoboam chose unto themselves [Jeroboam]; the Athenians rising against the thirty tyrants had Thrasybulus; those that drave [Archias] from Thebes were conducted by Pelopidas: when the Romans drave out the Tarquins, they chose Brutus and Publicola, and they destroyed the decemviri under Horatius and Valerius. All the multitudes that afterwards revolted from them under Mauritius, Telerius, Spartanus, and others, were not headless; and we know of none that were, but all either found heads, or made them. The Germans set up Arminius; the Britains, and others in latter times; the Castilians, that rose against Peter the Cruel, had the Lord de Trastamara.

The French, when they grew weary of the corrupted races of Pharamond and Pepin, [had] the same Pepin and Hugh Capet: The Scots when they slew James the Third, had his son to be their head; and when they deposed and imprisoned Queen Mary, the earl of Murray and others supplied the want of age that was in her son: And in all the revolutions we have had in England, the people have been headed by the parliament, or the nobility and gentry that composed it; and when the kings failed of their duties, by their own authority called it. The multitude therefore is not ever headless, but doth either find or create heads unto itself, as occasion doth require; and whether it be one man, or a few, or more, for a short or a longer time, we see nothing more regular than its motions. But they may, saith our author, shake off the yoke;[15] and why may they not, if it prove uneasy or hurtful unto them? Why should not the Israelites shake off the yoke of Pharaoh, Jabin, Sisera, and others that oppressed them?

When pride had changed Nebuchadnezzar into a beast, what should persuade the Assyrians not to drive him out amongst beasts, until God had restored unto him the heart of a man? When Tarquin had turned the legal monarchy of Rome into a most abominable tyranny, why should they not abolish it? And when the Protestants of the Low-Countries were so grievously oppressed by the power of Spain, under the proud, cruel and savage conduct of the duke of Alva, why should they not make use of all the means that God had put into their hands for their deliverance? Let any man who sees the present state of the provinces that then united themselves, judge whether it is better for them to be as they are, or in the condition unto which his fury would have reduced them, unless they had, to please him, renounced God and their religion: Our author may say, they ought to have suffered: The king of Spain by their resistance lost those countries; and that they ought not to have been judges in their own case. To which I answer, That by resisting they laid the foundation of many churches, that have produced multitudes of men, eminent in gifts and graces; and established a most glorious and happy commonwealth, that hath been since its first beginning, the strongest pillar of the Protestant cause, now in the world, and a place of refuge unto those who in all parts of Europe have been oppressed for the name of Christ: Whereas they had slavishly, and, I think I may say, wickedly as well as foolishly, suffered themselves to be butchered, if they had left those empty provinces under the power of Antichrist, where the name of God is no otherwise known than to be blasphemed.

If the king of Spain desired to keep his subjects, he should have governed them with more justice and mercy; when contrary unto all laws both human and divine, he seeks to destroy those he ought to have preserved, he can blame none but himself, if they deliver themselves from his tyranny: and when the matter is brought to that, that he must not reign, or they over whom he would reign, must perish; the matter is easily decided, as if the question had been asked in the time of Nero or Domitian, Whether they should be left at liberty to destroy the best part of the world, as they endeavoured to do, or it should be rescued by their destruction? And as for the peoples being judges in their own case, it is plain, they ought to be the only judges, because it is their own, and only concerns themselves.

[1] [Patriarcha, ch. 20.]

[2] [Patriarcha, ch. 18.]

[3] Ne quid detrimenti respubl. accipiat. [Livy, History of Rome, bk. 3, ch. 4.]

[4] Plut. Vit. Camil. [Plutarch, Life of Camillas, ch. 34.]

[5] Qui solus plus quam tua dictatura potest polletque cui et reges cessere, etc. T. Liv. I. 8. []

[6] [Deuteronomy 17:17, 20.]

[7] []

[8] [Patriarcha, ch. 20]

[9] []

[10] [God, law, and Parliament.]

[11] ["The law makes him king." Henry Bracton, On the Laws and Customs of England, fol. 107.]

[12] [The 1684 text reads "magistrates, and affect such a piece of nonsense;"]

[13] [Patriarcha.]

[14] [Actually, Ehud.]

[15] [Patriarcha.]