the evils they fuffered by wicked magiftrates, could not fall upon fuch as were proportionable to the disease, have only vented their paffions in deftroying the immediate inftruments of their oppreffion, or for a while delayed their utter ruin. But the root ftill remaining, it foon produced the fame poifonous fruit, and either quite destroyed, or made them languish in perpetual mifery. The Roman empire was the most eminent example of the first; many of the monsters that had tyrannized over them were killed; but the greatest advantage gained by their death, was a refpite from rain; and the government, which ought to have been established by good laws, depending only upon the virtue of one man, his life proved to be no more than a lucid interval, and at his death they relapfed into the depth of infamy and mifery; and in this condition they continued till the empire was totally fubverted.

. All the kingdoms of the Arabians, Medes, Perfians, Moors, and others of the east, are of the other fort: Common fenfe inftructs them, that barbarous pride, cruelty, and madnefs grown to extremity, cannot be borne: but they have no other way than to kill the tyrant, and to do the like to his fucceffor, if he fall into the fame crimes. Wanting that wifdom and valour which is required for the inftitution of a good government, they languish in perpetual flavery, and propofe to themfelves nothing better than to live under a gentle master, which is but a precarious life, and little to be valued by men of bravery and fpirit. But thofe nations that are more generous, who fet a higher value upon liberty, and

better

better. understand the ways of preferwing it, think it at fmall matter to destroy a tyrant, unless they can alfo de ftroy the tyranny. They endeavour to do the work throughly, either by changing the government intirely, t or reforming it according to the first institution, and making fuch good laws as may preserve its integrity: when reformed. This has been fo frequent in all ther nations (both ancient and modern) with whofe actions we are best acquainted, as appears by the foregoing examples, and many others that might be alledged, if the cafe were not clear, that there is not one of them which will not furnish us with many inftances; and no one magiftracy now in being which does not owe its original to fome judgment of this nature. So that they must either derive their right from fuch actions, or confefs they have none at all, and leave the nations to their original liberty of setting up those magiftracies, which beft, please themfelves, without any restriction or obligation to regard one person or family more than another.

SECT. XLII.

The perfon that wears the crown cannot determine the affairs which the law refers to the king.

OUR author, with the rest of the vulgar, feems to have been led into grofs errors by the form of writs fum moning perfons to appear before the king. The common ftyle ufed in the trial of delinquents; the name of

the

the king's witneffes given to those who accuse them; the verdicts brought in by juries, " coram domino rege;" and the profecution made in the king's name, feem to have caused this. And they who understand not these phrases, render the law a heap of the most grofs abfurdities, and the king an enemy to every one of his subjects, when he ought to be a father to them all; fince without any particular confideration or examination of what any witness deposes in a court of justice, tending to the death, confifcation, or other punishment of any man, he is called the king's witnefs, whether he fpeak the truth, or a lye, and on that account favoured. It is not neceffary to alledge many inftances in a cafe that is fo plain; but it may not be amifs to infert two or three of the most important reafons to prove my affertion.

1. If the law did intend, that he or she who wears the crown, should in his or her perfon judge all causes, and determine the most difficult queftions, it muft, like our author, prefume that they will always be of profound wisdom to comprehend all of them, and of perfect integrity always to act according to their understanding. Which is no less than to lay the foundation of the government upon a thing merely contingent, that either never was, or very often fails, as is too much verified by experience, and the hiftories of all nations; or else to refer the decifion of all to those who through the infirmities of age, sex, or perfon, are often uncapable of judging the least, or fubject to fuch paffions and vices as would divert them from justice, though they did understand it ; both which feem to be almoft equally prepofterous.

2. The law muft alfo prefume, that the prince is always prefent in all the places where his name is ufed. The king of France is (as I have said already) esteerhed to be present "* on the feat of juftice" in all the parlia ments and fovereign courts of the kingdom: and if his corporeal prefence were by that phrase to be understood, he must be in all thofe diftinct and far diftant places at the fame time: which abfurdity can hardly be parallelled, unless by the popish opinion of " transubstanti"ation." But indeed they are fo far from being guilty of fuch monftrous abfurdity, that he cannot in person be prefent at any trial; and no man can be judged, if he be. This was plainly afferted to Lewis the XIIIth (who would have been at the trial of the Duke of Candale) by the prefident de Bellievre, who told him, that as he could judge no man himself, fo they could not judge any, if he were prefent; upon which he retired.

3. The laws of most kingdoms giving to kings the confifcation of delinquents eftates, if they in their own perfons might give judgment upon them, they would be conftituted both judges and parties; which besides, the forementioned incapacities, to which princes are as much fubject as other men, would tempt them by their own perfonal interest to fubvert all manner of justice.

This therefore not being the meaning of the law, we are to enquire what it is: and the thing is fo plain, that we cannot mistake, unless we do it wilfully. Some name must be used in all manner of transactions, and in mat». ters of public concernment none can be fo fit as that of the

Sar fon lit de juftice!

principal

principal magiftrate. Thus are leagues made, not only with kings and emperors, but with the dukes of Venice and Genoa, the avoyer and fenate of a canton in Switzerland, the burgermafter of an imperial town in Germany, and the ftates-general of the United Provinces. But no man thinking, prefume, thefe leagues would be of any value, if they could only oblige the perfons whofe names are usued, it is plain, that they do not ftipulate only for themfelves; and that their ftipulations would be of no value, if they were merely perfonal. And nothing can more certainly prove, they are not fo, than that we certainly know, thefe dukes, avoyers, and burgermafters, can do nothing of themfelves. The power of the states-general of the United Provinces is limited to the points mentioned in the act of union made at Utrecht. The empire is not obliged by any ftipulation made by the emperor without their confent. Nothing is more common than for one king, making a league with another, to exact a confirmation of their agreement, by the parliaments, diets, or general eftates; because, fays Grotius, "a prince does

not ftipulate for himself, but for the people under his "government; and a king deprived of his kingdom lofes

the right of fending an ambaffador." The powers of Europe fhewed themfelves to be of this opinion in the case of Portugal. When Philip the Second had gained the poffeffion, they treated with him concerning the affairs relating to that kingdom: few regarded Don Antonio and no man" confidered the dukes of Savoy, Parma, or Braganza, who perhaps had the most plaufible titles: but, when his grandfon Philip the Fourth had loft that king1..

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