Kings cannot be the Interpreters of the Oaths they take.

OUR author's book is so full of absurdities and contradictions, that it would be a rope of sand, if a continued series of frauds did not, like a string of poisons running through the whole, give it some consistence with itself, and shew it to be the work of one and the same hand. After having endeavoured to subvert the laws of God, nature, and nations, most especially our own, by abusing the Scriptures, falsely alleging the authority of many good writers, and seeking to obtrude upon mankind a universal law, that would take from every nation the right of constituting such governments within themselves as seem most convenient for them, and giving rules for the administration of such as they had established, he gives us a full view of his religion and morals, by destroying the force of the oath taken by our kings at their coronation. Others, says he, affirm that although laws of themselves do not bind kings, yet the oaths of kings at their coronation tie them to keep all the laws of their kingdoms. How far this is true, let us but examine the oath of the kings of England at their coronation, the words whereof are these. Art thou pleased to cause to be administered in all thy judgments, indifferent and upright justice, and to use discretion with mercy and verity? Art thou pleased that our upright laws and customs be observed, and dost thou promise that those shall be protected and maintained by thee? &c. To which the king answers in the affirmative, being first demanded by the archbishop of Canterbury, Pleaseth it you to confirm and observe the laws and customs of the ancient times, granted from God by just and devout kings unto the English nation, by oath unto the said people, especially the laws, liberties and customs granted unto the clergy and laity by the famous King Edward? From this he infers, that the king is not to observe all laws, but such as are upright, because he finds evil laws mention'd in the oath of Richard the 2d, which he swears to abolish: Now what laws are upright and what evil, who shall judge but the king? &c. So that in effect the king doth swear to keep no laws but such as in his judgment are upright, &c. And if he did strictly swear to observe all laws, he could not without perjury give his consent to the repealing or abrogating of any statute by act of parliament, &c. And again, But let it be supposed for truth, that kings do swear to observe all laws of their kingdoms; yet no man can think it reason, that the kings should be more bound by their voluntary oaths than common persons: Now if a private person make a contract, either with oath or without oath, he is no farther bound than the equity and justice of the contract ties him; for a man may have relief against an unreasonable and unjust promise, if either deceit or error, force or fear induced him thereunto; or if it be hurtful or grievous in the performance, since the law in many cases gives the king a prerogative above common persons.[1] Lest I should be thought to insist upon small advantages, I will not oblige any man to shew where Filmer found this oath, nor observe the faults committed in the translation; but notwithstanding his false representation, I find enough for my purpose, and intend to take it in his own words. But first I shall take leave to remark, that those who for private interests addict themselves to the personal service of princes, tho to the ruin of their country, find it impossible to persuade mankind that kings may govern as they please, when all men know there are laws to direct and restrain them, unless they can make men believe they have their power from a universal and superior law; or that princes can attempt to dissolve the obligations laid upon them by the laws, which they so solemnly swear to observe, without rendering themselves detestable to God and man, and subject to the revenging hands of both, unless they can invalidate those oaths. Mr. Hobbes I think was the first, who very ingeniously contrived a compendious way of justifying the most abominable perjuries, and all the mischiefs ensuing thereupon, by pretending, that as the king's oath is made to the people, the people may absolve him from the obligation; and that the people having conferred upon him all the power they had, he can do all that they could: he can therefore absolve himself, and is actually free, since he is so when he pleases.[2] This is only false in the minor: for the people not having conferred upon him all, but only a part of their power, that of absolving him remains in themselves, otherwise they would never have obliged him to take the oath. He cannot therefore absolve himself. The pope finds a help for this, and as Christ's vicar pretends the power of absolution to be in him, and exercised it in absolving King John. But our author despairing to impose either of these upon our age and nation, with more impudence and less wit, would enervate all coronation-oaths by subjecting them to the discretion of the taker; whereas all men have hitherto thought their force to consist in the declared sense of those who give them. This doctrine is so new, that it surpasses the subtlety of the Schoolmen, who, as an ingenious person said of them, had minced oaths so fine, that a million of them, as well as angels, may stand upon the point of a needle; and were never yet equalled but by the Jesuits, who have overthrown them by mental reservations, which is so clearly demonstrated from their books, that it cannot be denied, but so horrible, that even those of their own order who have the least spark of common honesty condemn the practice. And one of them, being a gentleman of a good family, told me, he would go the next day and take all the oaths that should be offer'd, if he could satisfy his conscience in using any manner of equivocation or mental reservation; or that he might put any other sense upon them, than he knew to be intended by those who offer'd them. And if our author's conscience were not more corrupted than that of the Jesuit, who had lived fifty years under the worst discipline that I think ever was in the world, I would ask him seriously, if he truly believe, that the nobility, clergy and commonalty of England, who have been always so zealous for their ancient laws, and so resolute in defending them, did mean no more by the oaths they so solemnly imposed, and upon which they laid so much weight, than that the king should swear to keep them, so far only as he should think fit. But he swears only to observe those that are upright, &c. How can that be understood otherwise, than that those who give the oath, do declare their laws and customs to be upright and good, and he by taking the oath affirms them to be so? Or how can they be more precisely specified than by the ensuing clause, Granted from God by just and devout kings by oath, especially those of the famous King Edward? But, says he, by the same oath Richard the 2d was bound to abolish those that were evil. If any such had crept in through error, or been obtruded by malice, the evil being discovered and declared by the nobility and commons who were concerned, he was not to take advantage of them, or by his refusal to evade the abolition, but to join with his people in annulling them, according to the general clause of assenting to those quas vulgus elegerit.[3]

Magna Charta being only an abridgment of our ancient laws and customs, the king that swears to it, swears to them all; and not being admitted to be the interpreter of it, or to determine what is good or evil, fit to be observed or annulled in it, can have no more power over the rest. This having been confirmed by more parliaments than we have had kings since that time, the same obligation must still lie upon them all, as upon John and Henry, in whose time that claim of right was compiled. The act was no less solemn than important; and the most dreadful curses that could be conceived in words, which were denounced against such as should any way infringe it, by the clergy in Westminster-Hall, in the presence and with the assent of K. Henry the 3d, many of the principal nobility, and all the estates of the kingdom, shew whether it was referred to the king's judgment or not; when 'tis evident they feared the violation from no other than himself, and such as he should employ. I confess the church (as they then called the clergy) was fallen into such corruption, that their arms were not much to be feared by one who had his conscience clear; but that could not be in the case of perjury: and our ancestors could do no better, than to employ the spiritual sword, reserving to themselves the use of the other in case that should be despised. Tho the pope's excommunications proved sometimes to be but bruta fulmina,[4 ]when a just cause was wanting, it may be easily judged what obedience a prince could expect from his subjects, when every man knew he had by perjury drawn the most heavy curses upon himself. King John was certainly wicked, but he durst not break these bonds till he had procured the pope's absolution for a cover; and when he had done so, he found himself unsafe under it, and could not make good what he had promised to the pope to obtain it, the parliament declaring that his grants to the pope were unjust, illegal, contrary to his coronation-oath, and that they would not be held by them. This went so far in that king's time, that writs were issued out to men of all conditions to oblige themselves by oath to keep the Great Charter; and if other means failed, to compel the king to perform the conditions.[5] 'Tis expressly said in his charter, "That the barons and commonalty of the land shall straighten and compel us by all means possible, as by seizing our towns, lands, and possessions, or any other way, till satisfaction be made according to their pleasure."[6] And in the charter of his son Henry, 'tis, upon the same supposition of not performing the agreement, said, "It shall be lawful for all men in our kingdom to rise up against us, and to do all things that may be grievous to us, as if they were absolutely free from any engagements to our person."[7] These words seem to have been contrived to be so full and strong propter duplicitatem regis.[8] which was with too much reason suspected. And 'tis not, as I suppose, the language of slaves and villains begging something from their lord, but of noble and free men, who knew their lord was no more than what they made him, and had nothing but what they gave him: nor the language of a lord treating with such as enjoy'd their liberties by his favour, but with those whom he acknowledged to be the judges of his performing what had been stipulated; and equals the agreements made between the kings and people of Aragon, which I cited before from the Relations of Antonio Perez. This is as far as men can go; and the experience of all ages manifests, that princes performing their office, and observing these stipulations, have lived glorious, happy and beloved: and I can hardly find an example of any who have notoriously broken these oaths, and been adjudged to have incurred the penalties, who have not lived miserably, died shamefully, and left an abominable memory to posterity.

"But, says our author, kings cannot be more obliged by voluntary oaths than other men, and may be relieved from unjust and unreasonable promises, if they be induced by deceit, error, force or fear, or the performance be grievous."[9] Which is to say, that no oath is of any obligation: for there is none that is not voluntary or involuntary, and there never was any upon which some such thing may not be pretended, which would be the same if such as Filmer had the direction of their consciences who take the oaths, and of those who are to exact the performance. This would soon destroy all confidence between king and people, and not only unhinge the best established governments, but by a detestable practice of annihilating the force of oaths and most solemn contracts that can be made by men, overthrow all societies that subsist by them. I leave it to all reasonable men to judge how fit a work this would be for the supreme magistrate, who is advanced to the highest degree of human glory and happiness, that he may preserve them; and how that justice, for the obtaining of which governments are constituted, can be administered, if he who is to exact it from others, do in his own person utterly subvert it; and what they deserve, who by such base prevarications would teach them to pervert and abolish the most sacred of all contracts. A worthy person of our age was accustomed to say that contracts in writing were invented only to bind villains, who having no law, justice or truth within themselves, would not keep their words, unless such testimonies were given as might compel them. But if our author's doctrine were received, no contract would be of more value than a cobweb. Such as are not absolutely of a profligate conscience, so far reverence the religion of an oath, to think that even those which are most unjustly and violently imposed ought to be observed; and Julius Caesar, who I think was not over-scrupulous, when he was taken by pirates, and set at liberty upon his word, caused the ransom he had promised to be pay'd to them. We see the like is practiced every day by prisoners taken in unjust as well as just wars: And there is no honest man that would not abhor a person, who being taken by the pirates of Algiers should not pay what he had promised for his liberty. 'Twere in vain to say they had no right of exacting, or that the performance was grievous; he must return to the chains, or pay. And tho the people of Artois, Alsace, or Flanders, do perhaps with reason think the king of France has no right to impose oaths of allegiance upon them, no man doubts, that if they chuse rather to take those oaths, than to suffer what might ensue upon their refusal, they are as much bound to be faithful to him as his ancient subjects.

The like may be said of promises extorted by fraud; and no other example is necessary to prove they are to be performed than that of Joshua made to the Gibeonites.[10] They were an accursed nation, which he was commanded to destroy: They came to him with lies, and by deceit induced him to make a league with them, which he ought not to have done; but being made, it was to be performed; and on that account he did not only spare but defend them, and the action was approved by God. When Saul by a preposterous zeal violated that league, the anger of God for that breach of faith could no otherwise be appeased than by the death of seven of his children.[11] This case is so full, so precise, and of such undoubted authority, that I shall not trouble myself with any other. But if we believe our man of good morals, voluntary oaths and promises are of no more value than those gained by force or deceit, that is to say, none are of any. For voluntary signifying nothing but free, all human acts are either free or not free, that is, from the will of the person, or some impulse from without. If therefore there be no force in those that are free, nor in those that are not free, there is none in any.

No better use can be made of any pretension of error, or that the performance was grievous; for no man ought to be grieved at the performance of his contract. David assures us, that a good man performs his agreement tho he lose by it;[12] and the lord chancellor Egerton told a gentleman, who desired relief against his own deed, upon an allegation that he knew not what he did when he signed it, that he did not sit to relieve fools.

But tho voluntary promises or oaths, when, to use the lawyers' language, there is not a valuable consideration, were of no obligation; or that men brought by force, fear or error, into such contracts as are grievous in the performance, might be relieved; this would not at all reach the cases of princes, in the contracts made between them and their subjects, and confirmed by their oaths, there being no colour of force or fraud, fear or error for them to allege; nor anything to be pretended that can be grievous to perform, otherwise than as it may be grievous to an ill man not to do the mischiefs he had conceived.

Nations according to their own will frame the laws by which they resolve to be governed; and if they do it not wisely, the damage is only to themselves: But 'tis hard to find an example of any people that did by force oblige a man to take upon him the government of them. Gideon was indeed much pressed by the Israelites to be their king;[13] and the army of Germanicus in a mutiny more fiercely urged him to be emperor; but both desisted when their offers were refused. If our kings have been more modest, and our ancestors more pertinacious in compelling them to accept the crowns they offer'd, I shall upon proof of the matter change my opinion. But till that do appear, I may be pardoned if I think there was no such thing. William the Norman was not by force brought into England, but came voluntarily, and desired to be king: The nobility, clergy, and commons proposed the conditions upon which they would receive him. These conditions were to govern according to their ancient laws, especially those that had been granted, or rather collected in the time of the famous king Edward. Here was neither force nor fraud; if he had disliked the terms, he might have retired as freely as he came. But he did like them; and tho he was not perhaps so modest, to say with the brave Saxon king Offa, Ad libertatis vestrae tuitionem, non meis mentis, sed sola liberalitate vestra unanimiter me convocastis,[14] he accepted the crown upon the conditions offer'd and swore upon the Evangelists to observe them. Not much valuing this, he pretended to govern according to his own will; but finding the people would not endure it, he renewed his oath upon the same Evangelists, and the relics of St. Alban, which he needed not to have done, but might have departed to his duchy of Normandy if he had not lik'd the conditions, or thought not fit to observe them. 'Tis probable he examined the contents of Edward's laws before he swore to them,[15] and could not imagine, that a free nation which never had any other kings than such as had been chosen by themselves for the preservation of their liberty, and from whose liberality the best of their kings acknowledged the crowns they wore, did intend to give up their persons, liberties and estates to him, who was a stranger, most especially when they would not receive him till he had sworn to the same laws by which the others had reigned, of which one was (as appears by the act of the Conventus Pananglicus) that Reges a sacerdotibus & senioribus populi eligantur, the kings should be elected by the clergy and elders of the people.[16] By these means he was advanced to the crown, to which he could have no title, unless they had the right of conferring it upon him. Here was therefore no force, deceit or error; and whatsoever equity there might be to relieve one that had been forced, frighted or circumvented, it was nothing to this case. We do not find that William the 2d, or Henry, were forced to be kings; no sword was put to their throats; and for anything we know, the English nation was not then so contemptible but men might have been found in the world, who would willingly have accepted the crown, and even their elder brother Robert would not have refused: but the nobility and commons trusting to their oaths and promises, thought fit to prefer them before him; and when he endeavoured to impose himself upon the nation by force, they so severely punished him, that no better proof can be required to shew that they were accustomed to have no other kings than such as they approved. And this was one of the customs that all their kings swore to maintain, it being as ancient, just, and well approved as any other.

Having already proved, that all the kings we have had since that time, have come in upon the same title; that the Saxon laws to which all have sworn, continue to be of force amongst us, and that the words pronounced four times on the four sides of the scaffold by the archbishop, Will ye have this man to reign? do testify it; I may spare the pains of a repetition, and justly conclude, that if there was neither force nor fraud, fear nor error, to be pretended by the first, there could be none in those that followed.

But the observation of this oath may be grievous. If I received money the last year upon bond, promise, or sale of a manor or farm, can it be thought grievous to me to be compelled to repay, or to make over the land according to my agreement? Or if I did not seal the bond till I had the money, must not I perform the condition, or at the least restore what I had received? If it be grievous to any king to preserve the liberties, lives, and estates of his subjects, and to govern according to their laws, let him resign the crown, and the people to whom the oath was made, will probably release him. Others may possibly be found who will not think it grievous: or if none will accept a crown unless they may do what they please, the people must bear the misfortune of being obliged to govern themselves, or to institute some other sort of magistracy that will be satisfied with a less exorbitant power. Perhaps they may succeed as well as some others have done, who without being brought to that necessity, have voluntarily cast themselves into the misery of living without the majestick splendor of a monarch: or if that fail, they may as their last refuge, surrender up themselves to slavery. When that is done, we will acknowledge that whatsoever we have is derived from the favour of our master. But no such thing yet appearing amongst us, we may be pardoned if we think we are free-men governed by our own laws, and that no man has a power over us, which is not given and regulated by them; nor that anything but a new law made by ourselves, can exempt our kings from the obligation of performing their oaths taken, to govern according to the old, in the true sense of the words, as they are understood in our language by those who give them, and conducing to the ends for which they are given, which can be no other than to defend us from all manner of arbitrary power, and to fix a rule to which we are to conform our actions, and from which, according to our deserts, we may expect reward or punishment. And those who by prevarications, cavils or equivocations, endeavour to dissolve these obligations, do either maliciously betray the cause of kings, by representing them to the world as men who prefer the satisfaction of their irregular appetites before the performance of their duty, and trample under foot the most sacred bonds of human society; or from the grossest ignorance do not see, that by teaching nations how little they can rely upon the oaths of their princes, they instruct them as little to observe their own; and that not only because men are generally inclined to follow the examples of those in power, but from a most certain conclusion, that he who breaks his part of a contract cannot without the utmost impudence and folly expect the performance of the other; nothing being more known amongst men, than that all contracts are of such mutual obligation, that he who fails of his part discharges the other. If this be so between man and man, it must needs be so between one and many millions of men: If he were free, because he says he is, every man must be free also when he pleases; if a private man who receives no benefit, or perhaps prejudice from a contract, be obliged to perform the conditions, much more are kings who receive the greatest advantages the world can give. As they are not by themselves nor for themselves, so they are not different in specie from other men: they are born, live and die as we all do. The same law of truth and justice is given to all by God and nature, and perhaps I may say the performance of it is most rigorously exacted from the greatest of men. The liberty of perjury cannot be a privilege annexed to crowns; and 'tis absurd to think that the most venerable authority that can be conferred upon a man, is increased by a liberty to commit, or impunity in committing such crimes as are the greatest aggravations of infamy to the basest villains in the world.

[1] [Patriarcha, ch. 25.]

[2] Lib. de Cive. [Hobbes, De Cive, ch. 6, sec. 14; ch. 7, sec. 11; ch. 12, sec. 4.]

[3] [Which the people shall have chosen.]

[4] [Mere bluster.]

[5] Et quod ipsum regem per captionem distringerent & gravarent ad praefata exequenda. [Wendover, Flowers of History, vol. 2.]

[6] Et ipsi barones cum communitate totius terrae distringent & gravabunt nos modis omnibus quibus poterunt, scilicet per captionem castrorum, terrarum, possessionem, & aliis modis quibus potuerint, donec emendatum fuerit secundum arbitrium eorum. [Ibid.]

[7] Licet omnibus de regno nostro contra nos insurgere, & omnia facere quae gravamen nostrum respiciant, ac si nobis in nullo tenerentur. [Annals of Waverly (for year 1264), in Thomas Gale, Historiae Anglicanae scriptores quinque or Five Writers of English History (1687).]

[8] []

[9] [Patriarcha, ch. 25.]

[10] [Joshua 9.]

[11] [2 Samuel 21:1-14.]

[12] [Psalm 15:5.]

[13] [Judges 8:22-23.]

[14] Addit. Mat. Par. [Matthew Paris, Additamenta to the Historia Major, in Lives of the Two Offas, Kings of Mercia, and of Twenty-three Abbots of St. Albans (including Auctarium Additamentorum) (1640; corrected text, 1684).]

[15] Bonas & approbatas antiquas regni leges, quas sancti & pii reges ejus antecessores, & maxime Edvardus statuit, inviolabiliter observare. [Matthew Paris, Life of Frederick, Abbot of St. Albans, sec. 13.]

[16] [Sir Henry Spelman, Concilia, decreta, leges, constitutiones in re ecclesiarum orbis Britannia.]