Our own Laws confirm to us the enjoyment of our native Rights.

IF that which our author calls divinity did reach the things in dispute between us, or that the opinions of the fathers which he alleges, related to them, he might have spared the pains of examining our laws: for a municipal sanction were of little force to confirm a perpetual and universal law given by God to mankind, and of no value against it, since man cannot abrogate what God hath instituted, nor one nation free itself from a law that is given to all. But having abused the Scriptures, and the writings of the Fathers (whose opinions are to be valued only so far as they rightly interpret them), he seems desirous to try whether he can as well put a false sense upon our law, and has fully compassed his design. According to his custom he takes pieces of passages from good books, and turns them directly against the plain meaning of the authors, expressed in the whole scope and design of their writings. To show that he intends to spare none, he is not ashamed to cite Bracton, who of all our ancient law-writers is most opposite to his maxims. He lived, says he, in Henry the third's time, since parliaments were instituted:[1] as if there had been a time when England had wanted them; or that the establishment of our liberty had been made by the Normans, who, if we will believe our author, came in by force of arms, and oppressed us. But we have already proved the essence of parliaments to be as ancient as our nation, and that there was no time in which there were not such councils or assemblies of the people as had the power of the whole, and made or unmade such laws as best pleased themselves. We have indeed a French word from a people that came from France, but the power was always in ourselves; and the Norman kings were obliged to swear they would govern according to the laws that had been made by those assemblies. It imports little whether Bracton lived before or after they came amongst us. His words are, Omnes sub eo, & ipse sub nullo, sed tantum sub Deo; All are under him, and he under none but God only. If he offend, since no writ can go out against him, their remedy is by petitioning him to amend his faults; which if he will not do, it is punishment enough for him to expect God as an avenger. Let none presume to look into his deeds, much less to oppose him. Here is a mixture of sense and nonsense, truth and falsehood, the words of Bracton with our author's foolish inferences from them.[2] Bracton spoke of the politick capacity of the king, when no law had forbidden him to divide it from his natural. He gave the name of king to the sovereign power of the nation, as Jacob called that of his descendants the scepter; which he said should not depart from Judah till Shiloh came, tho all men know that his race did not reign the third part of that time over his own tribe, nor full fourscore years over the whole nation. The same manner of speech is used in all parts of the world. Tertullian under the name of Caesar comprehended all magistratical power, and imputed to him the acts of which in his person he never had any knowledge. The French say, their king is always present, sur son lit de justice,[3] in all the sovereign courts of the kingdom, which are not easily numbered; and that maxim could have in it neither sense nor truth, if by it they meant a man, who can be but in one place at one time, and is always comprehended within the dimensions of his own skin. These things could not be unknown to Bracton, the like being in use amongst us; and he thought it no offence so far to follow the dictates of reason prohibited by no law, as to make a difference between the invisible and omnipresent king, who never dies, and the person that wears the crown, whom no man without the guilt of treason may endeavour to kill, since there is an act of parliament in the case. I will not determine whether he spoke properly or no as to England; but if he did not, all that he said being upon a false supposition, is nothing to our purpose. The same Bracton says, the king doth no wrong, in as much as he doth nothing but by law. The power of the king is the power of the law, a power of right not of wrong.[4] Again, If the king does injustice, he is not king.[5] In another place he has these words; The king therefore ought to exercise the power of the law, as becomes the vicar and minister of God upon earth, because that power is the power of God alone; but the power of doing wrong is the power of the Devil, and not of God. And the king is his minister whose work he does: Whilst he does justice, he is the vicar of the Eternal King; but if he deflect from it to act unjustly, he is the minister of the Devil.[6] He also says that the king is singulis major, universis minor;[7] and that he who is in justitia exequenda omnibus major, in justitia recipienda cuilibet ex plebe fit aequalis.[8] I shall not say Bracton is in the right when he speaks in this manner; but 'tis a strange impudence in Filmer to cite him as a patron of the absolute power of kings, who does so extremely depress them. But the grossest of his follies is yet more pardonable than his detestable fraud in falsifying Bracton's words, and leaving out such as are not for his purpose, which shew his meaning to be directly contrary to the sense put upon them. That this may appear, I shall set down the words as they are found in Bracton: Ipse autem rex non debet esse sub homine, sed sub Deo, & sub lege, quia lex facit regem. Attribuat ergo rex legi quod lex attribuit ei, id est dominationem & potestatem: Non est enim rex ubi dominatur voluntas & non lex; & quod sub lege esse debeat, cum sit Dei vicarius, evidenter apparet.[9] If Bracton therefore be a competent judge, the king is under the law; and he is not a king, nor God's vicegerent unless he be so; and we all know how to proceed with those who being under the law, offend against it. For the law is not made in vain. In this case something more is to be done than petitioning; and 'tis ridiculous to say, that if he will not amend, 'tis punishment enough for him to expect God an avenger; for the same may be said of all malefactors. God can sufficiently punish thieves and murderers: but the future judgment, of which perhaps they have no belief, is not sufficient to restrain them from committing more crimes, nor to deter others from following their example. God was always able to punish murderers, but yet by his law he commands man to shed the blood of him who should shed man's blood; and declares that the land cannot be purged of the guilt by any other means. He had judgments in store for Jeroboam, Ahab, and those that were like them; but yet he commanded that, according to that law, their houses should be destroy'd from the earth. The dogs lick'd up the blood of Ahab, where they had licked that of Naboth, and eat Jezebel who had contrived his murder. But, says our author, we must not look into his deeds, much less oppose them. Must not David look into Saul's deeds, nor oppose them? Why did he then bring together as many men as he could to oppose, and make foreign alliances against him, even with the Moabites and the accursed Philistines? Why did Jehu not only destroy Ahab's house, but kill the king of Judah and his forty brothers, only for going to visit his children?[10] Our author may perhaps say, because God commanded them. But if God commanded them to do so, he did not command them and all mankind not to do so; and if he did not forbid, they have nothing to restrain them from doing the like, unless they have made municipal laws of their own to the contrary, which our author and his followers may produce when they can find them.

His next work is to go back again to the tribute paid by Christ to Caesar, and judiciously to infer, that all nations must pay the same duty to their magistrates, as the Jews did to the Romans who had subdued them. Christ did not, says he, ask what the law of the land was, nor inquire whether there was a statute against it, nor whether the tribute were given by the consent of the people, but upon sight of the superscription concluded, &c.[11] It had been strange if Christ had inquired after their laws, statutes or consent, when he knew that their commonwealth, with all the laws by which it had subsisted, was abolished; and that Israel was become a servant to those who exercised a most violent domination over them; which being a peculiar punishment for their peculiar sins, can have no influence upon nations that are not under the same circumstances.

But of all that he says, nothing is more incomprehensible, than what he can mean by lawful kings to whom all is due that was due to the Roman usurpers. For lawful kings are kings by the law: In being kings by the law, they are such kings as the law makes them, and that law only must tell us what is due to them; or by a universal patriarchical right, to which no man can have a title, as is said before, till he prove himself to be the right heir of Noah. If neither of these are to be regarded, but that right follows possession, there is no such thing as a usurper; he who has the power has the right, as indeed Filmer says,[12] and his wisdom as well as his integrity is sufficiently declared by the assertion.

This wicked extravagancy is followed by an attempt of as singular ignorance and stupidity, to shuffle together usurpers and conquerors, as if they were the same; whereas there have been many usurpers who were not conquerors, and conquerors that deserved not the name of usurpers. No wise man ever said that Agathocles or Dionysius conquer'd Syracuse; Tarquin, Galba or Otho, Rome; Cromwell, England; or that the magi, who seiz'd the government of Persia after the death of Cambyses, conquer'd that country. When Moses and Joshua had overthrown the kingdoms of the Amorites, Moabites and Canaanites; or when David subdued the Ammonites, Edomites, and others, none, as I suppose, but such divines as Filmer, will say they usurped a dominion over them. There is such a thing amongst men as just war, or else true valour would not be a virtue but a crime; and instead of glory, the utmost infamy would always be the companion of victory. There are, says Grotius, laws of war as well as of peace.[13] He who for a just cause, and by just means, carries on a just war, has as clear a right to what is acquired as can be enjoy'd by man, but all usurpation is detestable and abominable.

[1] [Patriarcha, ch. 23.]

[2] [Words quoted are entirely Bracton's, On the Laws and Customs of England, fol. 5.]

[3] [On his bench of justice.]

[4] Potestas regis est potestas legis, potestas juris non injuriae. Bract. de Leg. Angl. [Bracton, On the Laws and Customs of England, fol. 107.]

[5] Qui si facit injuriam, non est rex. Ibid.

[6] Exercere igitur debet rex potestatem juris sicut Dei vicarius & minister in terra, quia illa potestas solius Dei est, potestas autem injuriae diaboli est non Dei; & cujus horum opera fecerit rex, ejus minister erit: igitur dum facit justitiam, vicarius est regis aeterni: minister autem diaboli dum declinet ad injuriam. Ibid. 1. 3. [Fol. 107.]

[7] ["Greater than the individual (citizens)" ... "less than the whole (people)."]

[8] ["(He who is) greater than all in exacting justice, becomes equal to any of the common people in receiving justice." Fol. 107.]

[9] [Fol. 5.]

[10] [1 Samuel 22 and 27; 2 Kings 10.]

[11] [Patriarcha, ch. 23.]

[12] [Patriarcha.]

[13] Belli aeque ac pacis jura. De jur. bel. & pac. [Grotius, De jure, bk. 5, ch. 27.]