Vindicia Contra Tyronas
(A DEFENSE OF LIBERTY AGAINST TYRANTS)
THE THIRD QUESTION (Part 5): Whether it is lawful to resist a ruler who is oppressing or ruining the country, and how far such resistance may be extended; by whom, how, and by what right or law it is permitted.
Whether the king owns all property in the kingdom.
But the king, is he not lord proprietor of the public revenue? We must treat this point in a more exactly manner than we did the former. In the first place, we must consider that the revenue of the public treasury is one thing, and the proper heritage of the prince another. The goods of the emperor, king, or prince are of a different nature than those of Antonius, Henry, or Phillip; those are properly the king's, which he enjoys as king, those are Antonius' his which he possesses, as in the right of Antonius, the former he received from the people, the latter from those of his blood, as inheritor to them.
This distinction is mentioned frequently in the books of the civil law, where there is a difference is always made between the heritage of the empire, and that of the emperor. That is, the treasury of Caesar is one thing, and the exchequer of the commonwealth another, and both the one and the other have their own procurers, there being different dispensers of the sacred and public distributions, and of the particular and private expenses, insomuch as he who as emperor is preferred before a private man in a grant by deed or charter, may also sometime as Antonius give place to a lower person.
In like manner in the empire of Germany, the revenue of Ferdinand of Austria is one thing, and the revenue of the Emperor Ferdinand is another: the empire and the emperor each have their own treasures, as there is a also a difference between the inheritances which the princes derive from the houses of their ancestors, and those which are connected with being a ruler. Even among the Turks, Selimus, his gardens and inherited lands, are distinguished from those of the public, the one serving for the provision of the Sultan's table, the other used only for the Turkish affairs of state. There is, notwithstanding, kingdoms as the French and English, and others in which the king has no particular heritage, but only the public which he has received from the people -- there this former distinction has no place. For the goods which belong to the prince as a private person there is no question; he is absolute owner of them as other particular persons are, and may by the civil law sell, engage, or dispose of them at his discretion. But for the goods of the kingdom, which in some places are commonly called the demesnes, the kings may not be considered, in any way whatsoever, absolute proprietors of them.
For what if a man, for the sake of the flock, have made you shepherd, does it follow that you have liberty to slay, shear, sell, and transport the sheep at your pleasure? Although the people have established you judge or governor of a city, or of some province, do you therefore have power to alienate, sell, or fritter away that city or province? And seeing that in alienating or passing away a province, the people also are sold, have they raised you to that authority to the end that you should separate them from the rest, or that you should prostitute and make them slaves to whom you please? Furthermore, I demand to know whether the royal dignity is an heritage, or an office? If it's an office, what community has it with any propriety? If it's an heritage, is it not such a one that at least the primary ownership remains still in the people who were the donors? Briefly, if the revenue of the exchequer, or the demesnes of the kingdom, is called the dowry of the commonwealth, and by good right, and such a dowry whose dismembering or wasting brings with it the ruin of the public state, the kingdom and the king, by what law shall it be lawful to alienate this dowry? Let the emperor Wencislaus be infatuated, the French King Charles the Sixth, lunatic, and give or sell the kingdom, or part of it, to the English, let Malcolm, King of the Scots, lavishly dissipate the demesnes and consume the public treasury, what follows from all this? Those who choose the king to withstand the invasions of foreign enemies, shall they through his madness and negligence be made the slaves of strangers? And those means and wealth, which would have secured them in the fruition of their own estates and fortunes, shall they, by the election of such a king, be exposed to the prey and rapine of all comers? And that which particular persons have saved from their own necessities, and from those under their tutorship and government (as it happened in Scotland) to endue the commonwealth with it, shall it be devoured by some panderer or broker, for unclean pleasures?
But if, as we have often said, that kings were established for the people's use, what shall that use be, if it be perverted into abuse? What good can so much mischief and inconvenience bring, what profit can come of such eminent and irreparable damages and dangers? If in seeking to purchase my own liberty and welfare, I sell myself into absolute slavery and willingly subject myself to another's yoke, and become a fettered slave to another man's unruly desires, therefore, as it is imprinted in all of us by nature, so also has it by a long custom been approved by all nations, that it is not lawful for the king by the counsel of his own fancy and pleasure, to diminish or waste the public revenue; and those who have run a contrary course, have even lost that happy name of a king, and stood branded with the infamous title of a tyrant.
I confess that when kings were instituted, there was of necessity means to be assigned for them, as well to maintain their royal dignity, as to furnish the expense of their retinue and officers. Civility, and the welfare of the public state, seem to require it, for it was the duty of a king to establish judges in all places, who should receive no presents, nor sell justice: and also to have power ready to assist the execution of their ordinances, and to secure the ways from dangers, that commerce might be open, and free, etc. If there were likelihood of wars, to fortify and put garrisons into the frontier places, and to hold an army in the field, and to keep his magazines well stored with ammunition. It is commonly said that peace cannot be well maintained without provision for wars, nor wars managed without men, nor men kept in discipline without pay, nor money got without subsidies and tributes.
To discharge therefore the burden of the state in time of peace was the demesne appointed, and in time of wars the tributes and imports, yet so as if any extraordinary necessity required it, money might be raised by subsidies or other fitting means. The main intention of these was ever the public utility, in so much as he who converts any of these public revenues to his own private purposes, much more he who misspends them in any unworthy or loose occasions, no way merits the name of a king, for the ruler, says the apostle Paul, is the minister of God for the good of the people; and for that cause is tribute paid to them. This is the true original cause of the customs and taxes of the Romans, that those rich merchandises which were brought from the Indies, Arabia, Ethiopia, might be secured in their passage by land from thieves and robbers, and in their transportation by sea from pirates, insomuch as for their security, the commonwealth maintained a navy at sea. In this rank we must put the custom which was paid in the Red Sea, and other tolls of gates, bridges, and passages, for the securing of the great roadways (therefore called the Pretorian Consular, and the king's highways) from the spoil of thieves and free-booters. The repair and maintenance of bridges was referred to commissaries deputed by the king, as appears by the ordinance of Lewis the Courteous, concerning the twelve bridges over the river Seine, commanding also boats to be in readiness, to ferry over passengers, etc. For the tax laid upon salt there was none in use in those times, the most of the salt-pits being enjoyed by private persons, because it seemed that that which nature out of her own bounty gave to men, ought no more to be enhanced by sale than either the light, the air, or the water. As a certain king called Lycurgus in the lesser Asia, began to lay some impositions upon the salt-pits there, nature, as it were, impatiently bearing such a restraint of her liberality, the springs are said to have dried up suddenly. Yet certain of the court would persuade us at this day (as Juvenal complained in his time) that the sea affords nothing of worth, or good, which falls not within the compass of the king's prerogative.
He who first brought this taxation into Rome, was the Censor Livius, who therefore gained the surname of Salter; neither was it done but in the commonwealth's extreme necessity. And in France King Philip the Long, for the same reason obtained of the estates the imposition upon salt for five years only. What turmoils and troubles it's continuance has bred, every man knows. To be brief, all tributes were imposed and continued for the provision of means and stipends for the men of war: so as to make a province stipendiary or tributary, was esteemed the same with military.
Solomon exacted tributes to fortify the towns, and to erect and furnish a public storehouse. When it was accomplished, the people naturally required of Rehoboam to be freed from that burden. The Turks call the tribute of the provinces, the sacred blood of the people, and account it a most wicked crime to employ it in anything but the defence of the people. Therefore, by the same reason, all that which the king conquers in war belongs to the people, and not to the king, because the people bore the charges of the war, as that which is gained by a factor accrues to the account of his master. Yea, and what advantage he gains by marriage, if it belongs simply and absolutely to his wife, that is acquired also to the Kingdom, for so much as it is to be presumed that he gained not that preferment in marriage in quality of Philip or Charles, but as he was king. On the contrary, in like manner, the queens have interest of endowment in the estates which their husbands gained and enjoyed before they attained the crown, and have no title to that which is gotten after they are created kings, because that is judged to be belonging to the common purse, and has no proper reference to the king's private estate, which was so determined in France, between Philip of Valoys, and his wife Jean of Burgundy. But to the end that there be no money drawn from the people to be employed in private designs, and for particular ends and purposes, the emperor swears not to impose any taxes or tributes whatsoever, but by the authority of the estates of the empire. The kings of Poland, Hungary, and Denmark make similiar promises. The English in like manner enjoy the same to this day, by the laws of Henry the Third, and Edward the First.
The French kings in former times imposed no taxes but in the assemblies, and with the consent of the three estates. From there came the law of Philip of Valoys, that the people should not have any tribute laid on them but in urgent necessity, and with the consent of the estates. Even in old times, after these monies were collected, they were locked in coffers through every diocese and recommended to the special care of selected men (who are the same who at this day are called esleus), to the end that they should pay the soldiers enrolled within the towns of their dioceses: the which was in use in other countries, as namely in Flanders and other neighbouring provinces. At this day, though many corruptions have crept in, yet without the consent and confirmation of the parliament, no exactions may be collected; notwithstanding, there be some provinces which are not bound to anything without the approbation of the estates of the country, as Languedoke, Brittany, Province, Daulphiny, and some others. Finally, all the provinces of the low countries have the same privileges, lest the exchequer devour all, like the spleen which exhales the spirits from the other members of the body. In all places they have confined the exchequer within its proper bounds and limits.
Seeing then it is most certain that what has been ordinarily and extraordinarily assigned to kings, that is, tributes, taxes, and all the demesnes which encompasses all customs, both importations and exportations, forfeitures, amercements, royal escheats, confiscations, and other dues of the same nature, were consigned into their hands for the maintenance and defence of the people and the state of the kingdom, insomuch as if the sinews be cut, the people must fall to decay, and in demolishing these foundations, the kingdom will come to utter ruin. It necessarily follows, that he who lays impositions on the people only to oppress them, and by the public detriment seeks private profit, and with their own sword kills his subjects, he truly is unworthy the name of a king. Whereas contrarily, a true king, if he is a careful manager of the public affairs, so is he a ready protector of the common welfare, and not a lord in propriety of the commonwealth, having as little authority to sell or waste the demesnes or public revenue, as the kingdom itself. And if he misgovern the state, seeing it imports the Commonwealth that every one make use of his own talent, it is much more requisite for the public good, that he who has the managing of it, carry himself as he ought.
And therefore, if a prodigal lord, by the authority of justice, be committed to the custodyof his kinsmen and friends, and compelled to allow his revenues and means to be ordered and disposed of by others; by much more reason may those who have interest in the affairs of state (and whose duty obliges them to have one), take all the administration and government of the state out of the hands of him who either negligently executes his duties, or ruins the commonwealth, if after admonition he endeavours not to perform his duty. And for so much as it is easily to be proved, without searching into those elder times, that in all lawful dominions the king cannot be held lord in propriety of the demesnes; whereof we have an apt representation in the person of Ephron king of the Hittites, who dare not sell the field to Abraham without the consent of the people. This right is at this day practiced in public states: the emperor of Germany, before his coronation, solemnly swears that he will neither alienate, dismember, nor engage any of the rights or members of the empire. And, if he recover, or conquer anything with the arms and means of the public, it shall be gained to the empire, and not to himself. This is why, when Charles the Fourth promised each of the electors a hundred thousand crowns to choose his son Wencislaus emperor, and, having not ready money to deliver them, he mortgaged customs, taxes, tributes, and certain towns to them, which were the proper appurtenances of the empire, there followed much and vehement protest, most men holding this engagement void. And questionless it had been so declared, but for the profit that those reaped thereby, who ought principally to have maintained and held entire the rights and dignities of the empire. And it followed also, that Wencislaus was justly held incapable of the government of the empire, chiefly because he permitted the rights of the empire over the duchy of Milan to be wrested from him.
There is a very ancient law in the kingdom of Poland which prohibits the alienating of any of the kingdom's lands, which was renewed by King Lewis in the year 1375. In Hungary in A.D. 1221 there was a complaint made to Pope Honorius, that King Andrew had engaged the crown lands contrary to his oath. In England was the same by the law of King Edward in the year 1298. Likewise in Spain by the ordinance made under Alphonsus, and renewed in the year 1560, in the assembly of the estates at Toledo. These laws were then ratified, although it was a long time before custom had obtained the vigor and effect of law.
Now, for the kingdom of France where I longer confine myself, because she may in a sort pass as a pattern to the rest, this right has ever remained there inviolable. It is one of the most ancient laws of the kingdom, and a right born with the kingdom itself, that the demesne may not be alienated, which in A.D. 1566 (although but ill-deserved) was renewed. There are only two cases excepted, the portions or appanages of the children and brothers of the king, yet with this reservation, that the right of vassalage remains always to the crown in like manner if the condition of war require necessarily an alienation, yet it must be ever with power of redemption. Anciently neither the one nor the other were of validity, but by the commandment of the states: at this day since the parliament has been made stationary, the parliament of Paris which is the court of the peers, and the chamber of accounts, and of the treasury, must first approve it: as the edicts of Charles the Sixth and Ninth do testify. This is a thing so certain, that if the ancient kings themselves would endow a church (although that was a work much favored in those days), they were, notwithstanding, bound to have an allowance of the estates: witness King Childebert, who might not endow the Abbey of Saint Vincent at Paris before he had the French and Neustrians' consent. Clovis the Second, and other kings have observed the same. They might neither remit the regalities by granting enfranchisements, nor the nomination of prelates to any church. And if any of them have done it, as Lewis the Second, Philip the Fourth, and Philip surnamed Augustus, did in favor of the churches of Senis Auxera, and Nevers, the parliament declared it void. When the king is anointed at Rheims, he swears to observe this law: and if he infringe it, that act has as much validity with it as if he contracted to sell the empires of the Great Turk, or Sophia of Persia. From this spring the constitutions or ordinances of Philip the Sixth, of John the Second, of Charles Fifth, Sixth, and Eighth, by which they revoke all alienations made by their predecessors.
In the assembly of the estates at Tours, where King Charles the Eighth was in person, various alienations made by Lewis the Second were repealed and voided, and there was taken away from the heirs of Tancred of Chastel his great minion, various places which he had given him by his proper authority. This was finally ratified in the last assembly of the estates held at Orleans. Thus much concerning the kingdom's demesne. But to the end that we may yet more clearly perceive that the kingdom is preferred before the king, and that he cannot by his own proper authority diminish the majesty he has received from the people, nor enfranchise or release from his dominion any one of his subjects; nor quit or relinquish the sovereignty of the least part of his kingdom. Charlemagne in former times endeavored to subject the kingdom of France to the German empire, which the French did courageously oppose by the mouth of a prince of Glascony; and if Charlemagne had proceeded in that business, there would have been war. In like manner, when any portion of the kingdom was granted to the English, the sovereignty was almost always reserved. And if sometimes they obtained it by force, as at the treaty of Bretigny, by the which King John quitted the sovereignty of Glascony and Poytou, that agreement was not kept, neither was he more bound to do it, than a tutor or guardian is being prisoner (as he was then), which for his own deliverance should engage the estate of his pupils.
By the power of the same law the parliament of Paris made void the treaty of Conflans, by which Duke Charles of Burgundy had drawn from the king Amiens and other towns of Picardy. In our days, the same parliament declared void the agreement made at Madrid, between Francis the First, then prisoner, and Charles the Fifth, concerning the Duchy of Burgundy. But the domain made by Charles the Sixth to Henry King of England, of the kingdom of France, after his decease, is a sufficient testimony for this matter, and of his madness, if there had been no other proof. But to leave off producing any further testimonies, examples, or reasons, by what right can the king give or sell away the kingdom, or any part of it: seeing it consists of people, and not of earth or walls? And freemen can't be sold, nor trafficked; even the patrons themselves cannot compel the enfranchised servants to make their habitations in places other than they like. Particularlly so in that subjects are neither slaves nor enfranchised servants, but brothers: and not only the king's brethren taken one by one, but also considered in one body, they ought to be esteemed absolute lords and owners of the kingdom.
Whether the king be the usufructor of the kingdom?
But if the king be not lord in propriety, yet at the least we may esteem him usufructor of the kingdom, and of the demesne; nay, truly we can allow him to have the usufruct for being usufructor, though the propriety remain in the people: yet may he absolutely dispose of the profits, and engage them at his pleasure. Now we have already proved that kings of their own authority cannot engage the revenues of the exchequer, or the demesne of the kingdom. The usufructor may dispose of the profits to whom, how, and when he pleases. Contrarily, the excessive gifts of princes are ever judged void, his unnecessary expenses are not allowed, his superfluous to be cut off, and that which is expended by him in any other occasion, but for the public utility, is justly esteemed to be unjustly extorted, and is no less liable to the law Cincea, than the meanest Roman citizen formerly was. In France, the king's gifts are never of force, until the chamber of accounts have confirmed them. From hence proceed the postils of the ordinary chamber, in giving up of the accounts in the reigns of prodigal kings, Trop donne: soyt repele, which is, excessive gifts must be recalled. The judges of this chamber solemnly swear to pass nothing which may prejudice the kingdom, or the public state, notwithstanding any letters the king shall write unto them; but they are not always so mindful of this oath as were to be desired.
Furthermore, the law takes no care how a usufructor possesses and governs his revenues, but contrarywise, it prescribes unto the king, how and to what use he shall employ his. For the ancient kings of France were bound to divide their royal revenues into four parts. The first was implied in the maintaining of the ministers of the church, and providing for the poor: the second for the king's table: the third for the wages of his officers and household servants; the last in repairing of bridges, castles, and the royal palaces. And what was remaining, was laid up in the treasury, to be bestowed on the necessities of the commonwealth. And histories do at large relate the troubles and tumults which happened about the year 1412 in the assembly of the estates at Paris, because Charles the Sixth had wasted all the money that was raised of the revenues and demesne, in his own and his minion's loose pleasures, and that the expenses of the king's household, which before exceeded not the sum of ninety-four thousand francs, did amount, in that miserable estate of the commonwealth, to five hundred and forty thousand francs. Now as the demesne was employed in the before-mentioned affairs, so the aids were only for the war, and the taxes assigned for the payment of the men at arms and for no other occasion. In other kingdoms the king has no greater authority, and in divers less, especially in the empire of Germany, and in Poland. But we have made choice of the kingdom of France, to the end it be not thought this has any special prerogative above others, because there perhaps, the commonwealth receives the most detriment. Briefly, as I have before said, the name of a king signifies not an inheritance, nor a propriety, nor a usufruct, but a charge, office, and procuration. As a bishop is chosen to look to the welfare of the soul, so is the king established to take care of the body, so far forth as it concerns the public good; the one is dispenser of the heavenly treasure, the other of the secular, and what right the one has in the episcopal revenues, the same has the other, and no greater in the kingdom's demesne. If the bishop alien the goods of the bishopric without the consent of the chapter, this alienation is of no value; if the king alien the demesne without the approbation of the estates, that is also void; one portion of the ecclesiastical goods ought to be employed in the reparation of the churches; the second in relieving of the poor; the third, for the maintenance of the church men, and the fourth for the bishop himself. We have seen before, that the king ought to divide into four parts the revenues of the kingdom's demesne. The abuse of these times cannot infringe or annihilate the right, for, although some part of the bishops steal from the poor that which they profusely cast away on their panders, and ruin and destroy their lands and woods, the calling of the bishops is not for all that altered. Although that some emperors have assumed to themselves an absolute power, that cannot invest them with any further right, because no man can be judge in his own cause. What if some Caracalla vaunt he will not want money whilst the sword remains in his custody? The Emperor Adrian will promise on the contrary, so to discharge his office of principality, that he will always remember that the commonwealth is not his, but the people's; which one thing almost distinguishes a king from a tyrant. Neither can that act of Attalus King of Pergamus designing the Roman people for heirs to his kingdom, nor that of Alexander for Egypt, nor Ptolemy for the Cyrenians, bequeathing their kingdoms to the same people, nor Prasutagus King of the Icenians, who left his to Caesar, draw any good consequence of right to those who usurp that which by no just title belongs to them, nay, by how much the intrusion is more violent, by so much the equity and justice of the cause is more perspicuous: for what the Romans assumed under the colour of right, they would have made no difficulty if that pretext had been wanting to have taken by force. We have seen almost in our days how the Venetians possessed themselves of the kingdom of Cyprus, under presence of an imaginary adoption, which would have proved ridiculous, if it had not been seconded by power and arms. To which also may be not unfitly resembled the pretended donation of Constantine to Pope Silvester, for that straw of the decretist Gratian was long since consumed and turned to ashes; neither is of more validity the grant which Lewis the Courteous made to Pope Paschal of the city of Rome, and part of Italy. Because he gave that which he possessed not, no man opposed it. But when his father Charlemain would have united and subjected the kingdom of France to the German empire, the French did lawfully oppose it: and if he had persisted in his purpose, they were resolved to have hindered him, and defended themselves by arms.
There can be, too, as little advantage alleged that act of Solomon's, whom we read to have delivered twenty towns to Hiram King of Tyre: for he did not give them to him but for the securing of the talents of gold which Hiram had lent him, and they were redeemed at the end of the term, as it appears by the text. Further, the soil was barren, and husbanded by the remaining Canaanites. But Solomon, having redeemed it out of the hands of Hiram, delivered it to the Israelites to be inhabited and tilled. Neither serves it to much more purpose, to allege that in some kingdoms there is no express agreement between the king and the people; for suppose there be no mention made, yet the law of nature teacheth us, that kings were not ordained to ruin, but to govern the commonwealths, and that they may not by their proper authority alter or change the rights of the public state, and although they be lords, yet can they challenge it in no other quality, than as guardians do in the tuition of their pupils; neither can we account him a lawful lord, who deprives the commonwealth of her liberty, and sells her as a slave. Briefly, neither can we also allege, that some kingdoms are the proper acquists of the king himself, insomuch as they were not conquered by their proper means and swords, but by the hands, and with the wealth of the public; and there is nothing more agreeable to reason, than that which was gained with the joint difficulties and common danger of the public, should not be alienated or disposed of, without the consent of the states which represent the commonwealth: and the necessity of this law is such, that it is of force amongst robbers and free-booters themselves. He who follows a contrary course, must needs ruin human society. And although the French conquered by force of arms the countries of Germany and Gaule, yet this before mentioned right remains still entire.
To conclude, we must needs resolve, that kings are neither proprietors nor usufructuaries of the royal patrimony, but only administrators. And being so, they can by no just right attribute to themselves the propriety, use, or profit of private men's estates, nor with as little reason the public revenues, which are in truth only the commonwealth's. But before we pass any further, we must here resolve a doubt. The people of Israel having demanded a king, the Lord said to Samuel: hearken unto the voice of the people, notwithstanding, give them to understand what shall be the manner of the king who shall reign over them: "he will take your fields, your vineyards, your olive trees, to furnish his own occasions, and to enrich his servants," briefly, "he will make the people slaves." One would hardly believe in what estimation the courtiers of our times hold this text, when of all the rest of the Holy Scripture they make but a jest. In this place the almighty and all good God would manifest to the Israelites their levity, when that they had God Himself even present with them, who upon all occasions appointed them holy judges and worthy commanders for the wars, would, notwithstanding, rather subject themselves to the disordered commandments of a vain mutable man, than to the secure protection of the omnipotent and immutable God. He declares, then, unto them in what a slippery estate the king was placed, and how easily unruly authority fell into disordered violence, and kingly power was turned into tyrannous wilfulness. Seeing the king that he gave them would by preposterous violence draw the sword of authority against them, and subject the equity of the laws to his own unjust desires: and this mischief which they wilfully drew on themselves, they would happily repent of when it would not be so easily remedied. Briefly, this text does not describe the rights of kings, but what right they are accustomed to attribute to themselves: not what by the privilege of their places they may justly do; but what power for the satisfying of their own lusts, they unjustly usurp. This will manifestly appear from the seventeenth chapter of Deuteronomy, where God appoints a law for kings. Here says Samuel "the king will use his subjects like slaves." There God forbids the king "to lift his heart above his brethren," to wit, "over his subjects, whom he ought not to insult over, but to cherish as his kinsmen." "He will make chariots, levy horse-men, and take the goods of private men," says Samuel: on the contrary in Deuteronomy, he is exhorted "not to multiply horse-men, nor to heap up gold and silver, nor cause the people to return into Egypt," to wit into bondage. In Samuel we see pictured to the life wicked Ahab, who by pernicious means gets Naboth's vineyard: there, David, who held it not lawful to drink that water which was purchased with the danger of his subjects' lives. Samuel foretells that the king demanded by the Israelites, instead of keeping the laws, would govern all according to his own fancy. On the contrary, God commands that His law should by the priests be delivered into the hands of the king, to copy it out, and to have it continually before his eyes. Therefore Samuel, being high priest, gave to Saul the royal law contained in the seventeenth of Deuteronomy, written into a book, which certainly had been a frivolous act if the king were permitted to break it at his pleasure. Briefly, it is as much as if Samuel had said: You have asked a king after the manner of other nations, the most of whom have tyrants for their governors: you desire a king to distribute justice equally amongst you: but many of them think all things lawful which their own appetites suggest unto them; in the mean season you willingly shake off the Lord, whose only will is equity and justice in the abstract.
In Herodotus there is a history which plainly expresses how apt the royal government is to degenerate into tyranny, whereof Samuel so exactly forewarns the people. Deioces, much renowned for his justice, was first chosen judge amongst the Medes: presently after, to the end he might the better repress those who would oppose justice, he was chosen king, and invested with convenient authority; then he desired a guard, after, a citadel to be built in Ecbatana, the principal city of the kingdom, with colour to secure him from conspiracies and machinations of rebels; which being effected, he presently applied himself to revenge the least displeasures which were offered him with the greatest punishments.
Finally, no man might presume to look this king in the face, and to laugh or cough in his presence was punished with grievous torments. So dangerous a thing it is, to put into the hands of a weak mind (as all men's are by nature) unlimited power. Samuel therefore teaches not in that place that the authority of a king is absolute; on the contrary, he discreetly admonishes the people not to enthral their liberty under the unnecessary yoke of a weak and unruly master; he does not absolutely exclude the royal authority, but would have it restrained within its own limits; he does not amplify the king's right with an unbridled and licentious liberty; but rather tacitly persuades to put a bit into his mouth. It seems that this advice of Samuel's was very beneficial to the Israelites, for that they circumspectly moderated the power of their kings, the which, most nations grown wise, either by the experience of their own, or their neighbour's harms, have carefully looked unto, as will plainly appear by that which follows.
We have shewed already, that in the establishing of the king, there were two alliances or covenants contracted: the first between God, the king, and the people, of which we have formerly treated; the second, between the king and the people, of which we must now say somewhat. After that Saul was established king, the royal law was given him, according to which he ought to govern. David made a covenant in Hebron before the Lord, that is to say, taking God for witness, with all the ancients of Israel, who represented the whole body of the people, and even then he was made king. Joas also by the mouth of Johoiada the high priest, entered into covenant with the whole people of the land in the house of the Lord. And when the crown was set on his head, together with it was the law of the testimony put into his hand, which most expounds to be the law of God; likewise Josias promises to observe and keep the commandments, testimonies, and statutes comprised in the book of the covenant: under which words are contained all which belongs to the duties both of the first and second table of the law of God. In all the before-remembered places of the holy story, it is ever said, "that a covenant was made with all the people, with all the multitude, with all the elders, with all the men of Judah": to the end that we might know, as it is also fully expressed, that not only the principals of the tribes, but also all the milleniers, centurions, and subaltern magistrates should meet together, each of them in the name, and for their towns and communalties, to covenant and contract with the king. In this assembly was the creating of the king determined of, for it was the people who made the king, and not the king the people.
It is certain, then, that the people by way of stipulation, require a performance of covenants. The king promises it Now the condition of a stipulator is in terms of law more worthy than of a promiser. The people ask the king, whether he will govern justly and according to the laws? He promises he will. Then the people answer, and not before, that whilst he governs uprightly, they will obey faithfully. The king therefore promises simply and absolutely, the people upon condition: the which failing to be accomplished, the people rest according to equity and reason, quit from their promise.
In the first covenant or contract there is only an obligation to piety: in the second, to justice. In that the king promises to serve God religiously: in this, to rule the people justly. By the one he is obliged with the utmost of his endeavours to procure the glory of God: by the other, the profit of the people. In the first, there is a condition expressed, "if thou keep my commandments": in the second, "if thou distribute justice equally to every man." God is the proper revenger of deficiency in the former, and the whole people the lawful punisher of delinquency in the latter, or the estates, the representative body thereof, who have assumed to themselves the protection of the people. This has been always practiced in all well-governed estates. Amongst the Persians, after the due performance of holy rites, they contracted with Cyrus in manner following:
"Thou, O Cyrus ! in the first place shalt promise, that if any make war against the Persians, or seek to infringe the liberty of the laws, thou wilt with the utmost of thy power defend and protect this country." Which, having promised, they presently add, "And we Persians promise to be aiding to keep all men in obedience, whilst thou defendest the country." Xenophon calls this agreement, "A Confederation," as also Isocrates calls that which he wrote of the duties of subjects towards their princes, "A Discourse of Confederation." The alliance or confederation was renewed every month between the kings and Ephores of Sparta, although those kings were descended from the line of Hercules. And as these kings did solemnly swear to govern according to the laws, so did the Ephores also to maintain them in their authority, whilst they performed their promise. Likewise in the Roman kingdom, there was an agreement between Romulus, the senate, and the people, in this manner: " That the people should make laws, and the king look they were kept: the people should decree war, and the king should manage it." Now, although many emperors, rather by force and ambition, than by any lawful right, were seized of the Roman empire, and by that which they call a royal law, attributed to themselves an absolute authority, notwithstanding, by the fragments which remain both in books and in Roman inscriptions of that law, it plainly appears, that power and authority were granted them to preserve and govern the commonwealth, not to ruin and oppress it by tyranny. Nay, all good emperors have ever professed, that they held themselves tied to the laws, and received the empire from the senate, to whose determination they always referred the most important affairs, and esteemed it a great error, without their advice, to resolve on the occasions of the public state.
If we take into our consideration the condition of the empires, kingdoms, and states of times, there is not any of them worthy of those names, where there is not some such covenant or confederacy between the people and the prince. It is not long since, that in the empire of Germany, the king of the Romans being ready to be crowned emperor, was bound to do homage, and make oath of fealty to the empire, no more nor less than as the vassal is bound to do to his lord when he is invested with his fee. Although the form of the words which he is to swear have been somewhat altered by the popes, yet, notwithstanding, the substance still remains the same. According to which we know that Charles the Fifth, of the house of Austria, was under certain conditions chosen emperor, as in the same manner his successors were, the sum of which was, that he should keep the laws already made, and make no new ones without the consent of the electors, that he should govern the public affairs by the advice of the general estates, nor engage anything that belongs to the empire, and other matters which are particularly recited by the historians. When the emperor is crowned at Aquisgrave, the Archbishop of Cologne requires of him in the first place: If he will maintain the church, if he will distribute justice, if he will defend the empire, and protect widows, orphans, and all others worthy of compassion. The which, after he has solemnly sworn before the altar, the princes also who represent the empire, are asked if they will not promise the same; neither is the emperor anointed, nor receives the other ornaments of the empire, before he has first taken that solemn oath. Whereupon it follows, that the emperor is tied absolutely, and the princes of the empire, under condition. That the same is observed in the kingdom of Polonia, no man will make question, who had but seen or heard of the ceremonies and rites wherewith Henry of Anjou was lately chosen and crowned king of that country, and especially then when the condition of maintaining of the two religions, the reformed and the Roman, was demanded, the which the lords of the kingdom in express terms required of him three several times, and he as often made promise to perform. The same is observed in the kingdoms of Bohemia, Hungary, and others; the which we omit to relate particularly, to avoid prolixity.
Now this manner of stipulation is not only received in those kingdoms where the right of election is yet entirely observed; but even in those also which are esteemed to be simply hereditary. When the king of France is crowned, the bishops of Laon and Beauvois, ecclesiastical peers, ask all the people there present, whether they desire and command, that he who is there before them, shall be their king? Whereupon he is said even then in the style of the inauguration, to be chosen by the people: and when they have given the sign of consenting, then the king swears that he will maintain all the rights, privileges, and laws of France universally, that he will not alien the demesne, and the other articles, which have been yet so changed and accommodated to bad intentions, as they differ greatly from that copy which remains in the library of the chapter of Beauvois, according to which it is recorded, that King Philip, the first of that name, took his oath at his coronation; yet, notwithstanding, they are not unfitly expressed. Neither is he girded with the sword, nor anointed, nor crowned by the peers (who at that time wore coronets on their heads), nor receives the sceptre and rod of justice, nor is proclaimed king, before first the people have commanded it: neither do the peers take their oaths of allegiance before he has first solemnly sworn to keep the laws carefully. And those be, that he shall not waste the public revenue, that he shall not, of his own proper authority, impose any taxes, customs, or tributes, that he shall not make peace or war, nor determine of state affairs, without the advice of the council of state. Briefly, that he should leave to the parliament, to the states, and to the officers of the kingdom, their authority entire, and all things else which have been usually observed in the kingdom of France. And when he first enters any city or province, he is bound to confirm their privileges, and swears to maintain their laws and customs. This is straightly observed in the cities of Tholouse and Rochel, and in the countries of Daulpiny, Province and Brittany. The which towns and provinces have their particular and express covenants and agreements with the kings, which must needs be void, if the condition expressed in the contract be not of force, nor the kings tied to the performance.
There is the form of the oath of the ancient kings of Burgundy, yet extant in these words: "I will protect all men in their rights, according to law and justice."
In England, Scotland, Sweden, and Denmark, there is almost the same custom as in France; but in no place there is used a more discreet care in their manner of proceeding, than in Spain. For in the kingdom of Arragon, after the finishing of many ceremonies, which are used between him, which represents the Justitia Major of Arragon, which comprehends the majesty of the commonwealth, seated in a higher seat, and the king, which is to be crowned, who swears fealty, and does his homage; and having read the laws and conditions, to the accomplishment whereof he is sworn. Finally, the lords of the kingdom use to the king these words in the vulgar language, as is before expressed, "We who are as much worth as you, and have more power than you, choose you king upon these and these conditions, and there is one between you and us, who commands over you." But, lest the king should think he swore only for fashion's sake, and to observe an old custom, every third year in full assembly of the estates, the very same words, and in the same manner are repeated unto him. And, if under pretext of his royal dignity he become insolent, violating the laws, and neglect his public faith and promise given, then, by the privilege of the kingdom, he is judged, excommunicated, as execrable as Julian the apostate was by the primitive church: which excommunication is esteemed of that validity, that instead of praying for the king in their public orations, they pray against him, and the subjects are by the same right acquit from their oath of allegiance: as the vassal is exempted from obedience and obligation by oath to his lord who stands excommunicated; the which hath been determined and confirmed both by act of council and decree of state in the kingdom of Arragon.
In like manner, in the kingdom of Castile in full assembly of the estates, the king, being ready to be crowned, is first in the presence of all advertised of his duty: and even then are read the articles discreetly composed for the good of the commonwealth; the king swears he will observe and keep them carefully and faithfully, which, being done, then the constable takes his oath of allegiance, after the princes and deputies for the towns swear each of them in their order; and the same is observed in the kingdoms of Portugal, Leon, and the rest of Spain. The lesser principalities have their institution grounded on the same right. The contracts which the Brabancers and the rest of the Netherlanders, together with those of Austria, Carinthia, and others, had with their princes, were always conditional. But especially the Brabancers, to take away all occasion of dispute, have this express condition: which is that in the receiving of their duke, there is read in his presence the ancient articles, wherein is comprised that which is requisite for the public good, and thereunto is also added, that if he do not exactly and precisely observe them, they may choose what other lord it shall seem good unto them; the which they do in express words protest unto him. He having allowed and accepted of these articles, does in that public assembly promise and solemnly swear to keep them. The which was observed in the reception of Philip the Second, king of Spain. Briefly, there is not any man can deny, but that there is a contract mutually obligatory between the king and the subjects, which requires the people to obey faithfully, and the king to govern lawfully, for the performance whereof the king swears first, and after the people.
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