The Regal Power was not the first in this Nation; nor necessarily to be continued, tho it had been the first.
TRUTH being uniform in itself, those who desire to propagate it for the good of mankind, lay the foundations of their reasonings in such principles, as are either evident to common sense, or easily proved: but cheats and impostors delighting in obscurity, suppose things that are dubious or false, and think to build one falsehood upon another; and our author can find no better way to persuade us, that all our privileges and laws are from the king, than by saying, That the first power was the kingly power, which was both in this and all other nations in the world, long before any laws or any other kind of government was thought of; from whence we must necessarily infer, that the common law, or common customs of this land were originally the laws and commands of the king. But denying both these points, I affirm,
1. First, that there was a power to make kings before there was any king.
2. Tho kings had been the first created magistrates in all places (as perhaps they were in some) it does not follow, that they must continue forever, or that laws are from them.
To the first; I think no man will deny, that there was a people at Babylon, before Nimrod was king of that place. This people had a power; for no number of men can be without it: Nay this people had a power of making Nimrod king, or he could never have been king. He could not be king by succession, for the Scripture shews him to have been the first. He was not king by the right of father, for he was not their father, Cush, Ham, with his elder brothers and father Noah being still living; and, which is worst of all, were not kings: for if they who lived in Nimrod's time, or before him, neither were kings, nor had kings, he that ought to have been king over all by the right of nature (if there had been any such thing in nature) was not king. Those who immediately succeeded him, and must have inherited his right, if he had any, did not inherit or pretend to it: and therefore he that shall now claim a right from nature, as father of a people, must ground it upon something more certain than Noah's right of reigning over his children, or it can have no strength in it.
Moreover, the nations who in and before the time of Nimrod had no kings, had power, or else they could have performed no act, nor constituted any other magistrate to this day, which is absurd. There was therefore a power in nations before there were kings, or there could never have been any; and Nimrod could never have been king, if the people of Babylon had not made him king, which they could not have done if they had not had a power of making him so. 'Tis ridiculous to say he made himself king, for tho he might be strong and valiant, he could not be stronger than a multitude of men. That which forces must be stronger than that which is forced; and if it be true, according to the ancient saying, that Hercules himself is not sufficient to encounter two, 'tis sure more impossible for one man to force a multitude, for that must be stronger than he. If he came in by persuasion, they who were persuaded, were persuaded to consent that he should be king. That consent therefore made him king. But, Qui dat esse, dat modum esse: They who made him king, made him such a king as best pleased themselves. He had therefore nothing but what was given: his greatness and power must be from the multitude who gave it: and their laws and liberties could not be from him; but their liberties were naturally inherent in themselves, and their laws were the product of them.
There was a people that made Romulus king. He did not make or beget that people, nor, for anything we know, one man of them. He could not come in by inheritance, for he was a bastard, the son of an unknown man; and when he died, the right that had been conferred upon him reverted to the people, who according to that right, chose Numa, Hostilius, Marcius, Tarquinius Priscus, and Servius, all strangers, and without any other right than what was bestow'd upon them: and Tarquinius Superbus who invaded the throne without the command of the people, was ejected, and the government of kings abolished by the same power that had created it.
We know not certainly by what law Moses and the judges created by the advice of Jethro, governed the Israelites; but may probably conjecture it to have been by that law which God had written in the hearts of mankind; and the people submitted to the judgment of good and wise men, tho they were under no coercive power: but 'tis certain they had a law and a regular magistracy under which they lived, four hundred years before they had a king, for Saul was the first. This law was not therefore from the king, nor by the king; but the king was chosen and made by the people, according to the liberty they had by the law, tho they did not rightly follow the rules therein prescribed, and by that means brought destruction upon themselves.
The country in which we live lay long concealed under obscure barbarity, and we know nothing of the first inhabitants, but what is involved in fables that leave us still in the dark. Julius Caesar is the first who speaks distinctly of our affairs, and gives us no reason to believe there was any monarchy then established amongst us. Cassivellaunus was occasionally chosen by the nations that were most exposed to the violence of the Romans, for the management of those wars against them. By others we hear of Boadicia, Arviragus, Galgacus, and many more set up afterwards when need required; but we find no footsteps of a regular succession either by inheritance or election. And as they had then no kings, or any other general magistrate, than can be said to be equivalent to a king, they might have had none at all unless they had thought fit. Tacitus mentions a sort of kings, used by the Romans to keep nations in servitude to them; and tho it were true that there had been such a man as Lucius, and he one of this sort, he is to be accounted only as a Roman magistrate, and signifies no more to our dispute, than if he had been called proconsul, praetor, or by any other name. However there was no series of them: that which was temporary and occasional, depended upon the will of those, who thinking there was occasion, created such a magistrate, and omitted to do so, when the occasion ceased, or was thought to cease; and might have had none at all, if they had so pleased. The magistracy therefore was from them, and depended upon their will.
We have already mentioned the histories of the Saxons, Danes and Normans, from which nations, together with the Britains, we are descended, and finding that they were severe assertors of their liberties, acknowledged no human laws but their own, received no kings but such as swore to observe them, and deposed those who did not well perform their oaths and duty, 'tis evident that their kings were made by the people according to the law; and that the law, by which they became what they were, could not be from themselves. Our ancestors were so fully convinced that in the creation of kings they exercised their own right, and were only to consider what was good for themselves, that without regard to the memory of those who had gone before, they were accustomed to take such as seemed most like, wisely, justly and gently to perform their office; refused those that were suspected of pride, cruelty or any other vice that might bring prejudice upon the publick, what title soever they pretended; and removed such as had been placed in the throne if they did not answer the opinion conceived of their virtue; which I take to be a manner of proceeding that agrees better with the quality of masters, making laws and magistrates for themselves, than of slaves receiving such as were imposed upon them.
2. To the second. Tho it should be granted, that all nations had at the first been governed by kings, it were nothing to the question; for no man or number of men was ever obliged to continue in the errors of his predecessors. The authority of custom as well as of law (I mean in relation to the power that made it to be) consists only in its rectitude: And the same reason which may have induced one or more nations to create kings, when they knew no other form of government, may not only induce them to set up another, if that be found inconvenient to them, but proves that they may as justly do so, as remove a man who performs not what was expected from him. If there had been a rule given by God, and written in the minds of men by nature, it must have been from the beginning, universal and perpetual; or at least must have been observed by the wisest and best instructed nations: which not being in any measure (as I have proved already) there can be no reason, why a polite people should not relinquish the errors committed by their ancestors in the time of their barbarism and ignorance, and why they should not do it in matters of government, as well as in any other thing relating to life. Men are subject to errors, and 'tis the work of the best and wisest to discover and amend such as their ancestors may have committed, or to add perfection to those things which by them have been well invented. This is so certain, that whatsoever we enjoy beyond the misery in which our barbarous ancestors lived, is due only to the liberty of correcting what was amiss in their practice, or inventing that which they did not know: and I doubt whether it be more brutish to say we are obliged to continue in the idolatry of the Druids, with all the miseries and follies that accompany the most savage barbarity, or to confess that tho we have a right to depart from these, yet we are forever bound to continue the government they had established, whatever inconveniences might attend it. Tertullian disputing with the pagans, who objected the novelty of the Christian religion, troubled not himself with refuting that error; but proving Christianity to be good and true, he thought he had sufficiently proved it to be ancient. A wise architect may shew his skill, and deserve commendation for building a poor house of vile materials, when he can procure no better, but he no way ought to hinder others from erecting more glorious fabricks if they are furnished with the means required. Besides, such is the imperfection of all human constitutions, that they are subject to perpetual fluctuation, which never permits them to continue long in the same condition: Corruptions slide in insensibly; and the best orders are sometimes subverted by malice and violence; so that he who only regards what was done in such an age, often takes the corruption of the state for the institution, follows the worst example, thinks that to be the first, that is the most ancient he knows; and if a brave people seeing the original defects of their government, or the corruption into which it may be fallen, do either correct and reform what may be amended, or abolish that which was evil in the institution, or so perverted that it cannot be restor'd to integrity, these men impute it to sedition, and blame those actions, which of all that can be performed by men are the most glorious. We are not therefore so much to inquire after that which is most ancient, as that which is best, and most conducing to the good ends to which it was directed. As governments were instituted for the obtaining of justice, and (as our author says) the preservation of liberty, we are not to seek what government was the first, but what best provides for the obtaining of justice, and preservation of liberty. For whatsoever the institution be, and how long soever it may have lasted, 'tis void, if it thwarts, or do not provide for the ends of its establishment. If such a law or custom therefore as is not good in itself, had in the beginning prevailed in all parts of the world (which in relation to absolute or any kind of monarchy is not true) it ought to be abolished; and if any man should shew himself wiser than others by proposing a law or government, more beneficial to mankind than any that had been formerly known, providing better for justice and liberty than all others had done, he would merit the highest veneration. If any man ask, who shall be judge of that rectitude or pravity which either authorises or destroys a law? I answer, that as this consists not in formalities and niceties, but in evident and substantial truths, there is no need of any other tribunal than that of common sense, and the light of nature, to determine the matter: and he that travels through France, Italy, Turkey, Germany and Switzerland without consulting Bartolus or Baldus, will easily understand whether the countries that are under the kings of France and Spain, the pope and the Great Turk, or such as are under the care of a well-regulated magistracy, do best enjoy the benefits of justice and liberty. 'Tis as easily determined, whether the Grecians when Athens and Thebes flourished were more free than the Medes; whether justice was better administered by Agathocles, Dionysius and Phalaris, than by the legal kings and regular magistrates of Sparta; or whether more care was taken that justice and liberty might be preserved by Tiberius, Caligula, Claudius, Nero and Vitellius, than by the senate and people of Rome whilst the laws were more powerful than the commands of men. The like may be said of particular laws, as those of Nebuchadnezzar and Caligula, for worshipping their statues; our acts of Parliament against hereticks and Lollards, with the statutes and orders of the Inquisition which is called the Holy Office. And if that only be a law which is sanctio recta, jubens honesta, prohibens contraria, the meanest understanding, if free from passion, may certainly know that such as these cannot be laws, by what authority soever they were enacted, and that the use of them, and others like to them, ought to be abolished for their turpitude and iniquity. Infinite examples of the like nature might be alleged, as well concerning divine as human things. And if there be any laws which are evil, there cannot be an incontestable rectitude in all, and if not in all, it concerns us to examine where it is to be found. Laws and constitutions ought to be weighed, and whilst all due reverence is paid to such as are good, every nation may not only retain in itself a power of changing or abolishing all such as are not so, but ought to exercise that power according to the best of their understanding, and in the place of what was either at first mistaken or afterwards corrupted, to constitute that which is most conducing to the establishment of justice and liberty.
But such is the condition of mankind, that nothing can be so perfectly framed as not to give some testimony of human imbecility, and frequently to stand in need of reparations and amendments. Many things are unknown to the wisest, and the best men can never wholly divest themselves of passions and affections. By this means the best and wisest are sometimes led into error, and stand in need of successors like to themselves, who may find remedies for the faults they have committed, and nothing can or ought to be permanent but that which is perfect. No natural body was ever so well temper'd and organiz'd, as not to be subject to diseases, wounds or other accidents, and to need medicines and other occasional helps as well as nourishment and exercise; and he who under the name of innovation would deprive nations of the like, does, as much as lies in him, condemn them all to perish by the defects of their own foundations. Some men observing this, have proposed a necessity of reducing every state once in an age or two, to the integrity of its first principle: but they ought to have examined, whether that principle be good or evil, or so good that nothing can be added to it, which none ever was; and this being so, those who will admit of no change would render errors perpetual, and depriving mankind of the benefits of wisdom, industry, experience, and the right use of reason, oblige all to continue in the miserable barbarity of their ancestors, which suits better with the name of a wolf than that of a man.
Those who are of better understanding, weigh all things, and often find reason to abrogate that which their fathers according to the measure of the knowledge they had, or the state of things among them had rightly instituted, or to restore that which they had abrogated; and there can be no greater mark of a most brutish stupidity, than for men to continue in an evil way, because their fathers had brought them into it. But if we ought not too strictly to adhere to our own constitutions, those of other nations are less to be regarded by us; for the laws that may be good for one people are not for all, and that which agrees with the manners of one age, is utterly abhorrent from those of another. It were absurd to think of restoring the laws of Lycurgus to the present inhabitants of Peloponnesus, who are accustomed to the most abject slavery. It may easily be imagined, how the Romans, Sabines and Latins, now under the tyranny of the pope, would relish such a discipline as flourished among them after the expulsion of the Tarquins; and it had been no less preposterous to give a liberty to the Parthians of governing themselves, or for them to assume it, than to impose an absolute monarch upon the German nation. Titus Livius having observed this, says, that if a popular government had been set up in Rome immediately upon the building of the city; and if that fierce people which was composed of unruly shepherds, herdsmen, fugitive slaves, and outlaw'd persons, who could not suffer the governments under which they were born, had come to be incited by turbulent orators, they would have brought all into confusion: whereas that boisterous humour being gradually temper'd by discipline under Romulus, or taught to vent its fury against foreign enemies, and soften'd by the peaceable reign of Numa, a new race grew up, which being all of one blood, contracted a love to their country, and became capable of liberty, which the madness of their last king, and the lewdness of his son, gave them occasion to resume. If this was commendable in them, it must be so in other nations. If the Germans might preserve their liberty, as well as the Parthians submit themselves to absolute monarchy, 'tis as lawful for the descendants of those Germans to continue in it, as for the Eastern nations to be slaves. If one nation may justly chuse the government that seems best to them, and continue or alter it according to the changes of times and things, the same right must belong to others. The great variety of laws that are or have been in the world, proceeds from this, and nothing can better shew the wisdom and virtue, or the vices and folly of nations, than the use they make of this right: they have been glorious or infamous, powerful or despicable, happy or miserable, as they have well or ill executed it.
If it be said that the law given by God to the Hebrews, proceeding from his wisdom and goodness, must needs be perfect and obligatory to all nations: I answer, that there is a simple and a relative perfection; the first is only in God, the other in the things he has created: He saw that they were good, which can signify no more than that they were good in their kind, and suited to the end for which he designed them. For if the perfection were absolute, there could be no difference between an angel and a worm, and nothing could be subject to change or death, for that is imperfection. This relative perfection is seen also by his law given to mankind in the persons of Adam and Noah. It was good in the kind, fit for those times, but could never have been enlarged or altered, if the perfection had been simple; and no better evidence can be given to shew that it was not so, than that God did afterwards give one much more full and explicit to his people. This law also was peculiarly applicable to that people and season, for if it had been otherwise, the apostles would have obliged Christians to the entire observation of it, as well as to abstain from idolatry, fornication and blood. But if all this be not so, then their judicial law, and the form of their commonwealth must be received by all; no human law can be of any value; we are all brethren, no man has a prerogative above another; lands must be equally divided amongst all; inheritances cannot be alienated for above fifty years; no man can be raised above the rest unless he be called by God, and enabled by his spirit to conduct the people; when this man dies, he that has the same spirit must succeed, as Joshua did to Moses, and his children can have no title to his office: when such a man appears, a Sanhedrin of seventy men chosen out of the whole people, are to judge such causes as relate to themselves, whilst those of greater extent and importance are referred to the general assemblies. Here is no mention of a king, and consequently, if we must take this law for our pattern, we cannot have one: If the point be driven to the utmost, and the precept of Deuteronomy, where God permitted them to have a king, if they thought fit when they came into the promised land, be understood to extend to all nations, every one of them must have the same liberty of taking their own time, chusing him in their own way, dividing the kingdom, having no king, and setting up other governors when they please, as before the election of Saul, and after the return from the Captivity: and even when they have a king, he must be such a one as is describ'd in the same chapter, who no more resembles the sovereign majesty that our author adores, and agrees as little with his maxims, as a tribune of the Roman people.
We may therefore conclude, that if we are to follow the law of Moses, we must take it with all the appendages; a king can be no more, and no otherwise than he makes him: for whatever we read of the kings they had, were extreme deviations from it. No nation can make any law, and our lawyers burning their books may betake themselves to the study of the Pentateuch, in which tho some of them may be well versed, yet probably the profit arising from thence will not be very great.
But if we are not obliged to live in a conformity to the law of Moses, every people may frame laws for themselves, and we cannot be denied the right that is common to all. Our laws were not sent from heaven, but made by our ancestors according to the light they had, and their present occasions. We inherit the same right from them, and, as we may without vanity say that we know a little more than they did, if we find ourselves prejudic'd by any law that they made, we may repeal it. The safety of the people was their supreme law, and is so to us: neither can we be thought less fit to judge what conduces to that end, than they were. If they in any age had been persuaded to put themselves under the power, or in our author's phrase, under the sovereign majesty of a child, a fool, a mad or desperately wicked person, and had annexed the right conferred upon him to such as should succeed, it had not been a just and right sanction; and having none of the qualities essentially belonging to a law, could not have the effect of a law. It cannot be for the good of a people to be governed by one, who by nature ought to be governed, or by age or accident is rendered unable to govern himself. The publick interests and the concernments of private men in their lands, goods, liberties and lives (for the preservation of which our author says, that regal prerogative is only constituted) cannot be preserved by one who is transported by his own passions or follies, a slave to his lusts and vices; or, which is sometimes worse, governed by the vilest of men and women who flatter him in them, and push him on to do such things as even they would abhor, if they were in his place. The turpitude and impious madness of such an act must necessarily make it void, by overthrowing the ends for which it was made, since that justice which was sought cannot be obtain'd, nor the evils that were fear'd, prevented; and they for whose good it was intended must necessarily have a right of abolishing it. This might be sufficient for us, tho our ancestors had enslaved themselves. But, God be thanked, we are not put to that trouble: We have no reason to believe we are descended from such fools and beasts, as would willingly cast themselves and us into such an excess of misery and shame, or that they were so tame and cowardly to be subjected by force or fear. We know the value they set upon their liberties, and the courage with which they defended them: and we can have no better example to encourage us, never to suffer them to be violated or diminished.
 [Patriarcha, ch. 27.]
 [Whoever gives something being, gives it its mode of being.]
 Sine jussu populi. T. Liv. 1. 1. [Livy, History of Rome, bk. 1, ch. 49.]
 Jul. Caes. Comment. 1. 5. [Commentaries, bk. 5, ch. 9, in Julius Caesar, Gallic War.]
 Inter instrumenta servitutis reges habuere. C. Tacit. [Tacitus, Life of Agricola, ch. 14.]
 Nullum tempus, nulla praescriptio occurrit veritati. Tertul. Id antiquius quod verius. Ibid. [No time, no prescription counteracts truth. The truer something is, the more ancient it is.]
 [Patriarcha, ch. 1.]
 Discors. di Machiav. lib. 2. [Machiavelli, Discourses on Livy, bk. 3, ch. 1.]
 Hist. I. 2. [Livy, History of Rome, bk. 2, ch. 1.]
 Gen. 1.