The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• Acknowledgments
• Introduction
• The Vocabulary of Sovereignty
• The Sovereignty of the King
• The Sovereignty of Law
• The Sovereignty of Parliament
• War Footing
• Chronology
• The Struggle For Sovereignty, Volume I
• Under God and the Law
• Edward Coke, the Second Part of the Reports
• Sir Edward Coke, the Twelfth Part of the Reports
• Sovereignty In the King Alone
• William Goodwin, a Sermon
• Roger Maynwaring, Religion and Alegiance
• Peter Heylyn, a Briefe and Moderate Answer
• Battle Joined 1640-1648
• Henry Parker, the Case of Shipmoney
• John Pym, the Speech Or Declaration
• Charles I, Xix Propositions Made By Parliament
• Henry Ferne, the Resolving of Conscience
• Charles Herle, a Fuller Answer to a Treatise
• Anonymous, Touching the Fundamentall Lawes
• William Ball, Constitutio Liberi Populi
• Uncharted Waters
• John Goodwin, Right and Might Well Mett
• Anonymous, the People’s Right Briefly Asserted
• Parliament, a Declaration of the Parliament of England
• Law and Conscience During the Confusions and Revolutions of Government
• Francis Rous, the Lawfulnes of Obeying the Present Government
• Anonymous, the Grand Case of Conscience Stated
• George Lawson, Conscience Puzzle’d
• Isaac Penington, the Right, Liberty and Safety of the People
• The “after Game”
• Roger L’estrange, a Plea For Limited Monarchy
• John Milton, the Readie and Easie Way to Establish a Free Commonwealth

Anonymous, The People’s Right Briefly Asserted

Anonymous

THE

PEOPLES

RIGHT

BRIEFLY

ASSERTED.

LONDON,

Printed for the Information of the Commonality of England, France, and all other neighbor Nations, that groan under the oppression of Tyrannical Government. 1649.

On 1 January 1649 the Rump House of Commons passed an act creating a High Court of Justice to try Charles I for treason. There was, of course, no established mechanism for holding a king personally accountable, let alone putting him on trial. When the House of Lords rejected the ordinance, the Commons responded with a proclamation announcing that the ultimate constitutional power lay with the people, and the people had delegated it to them, their elected representatives. The Commons then passed an act setting up a High Court of Justice.

Almost immediately a series of pamphlets appeared debating the legality and necessity of putting the king on trial. Some parliamentary stalwarts, such as William Prynne and Colonel Edward Massey, who had been excluded at Pride’s Purge, published tracts that vehemently objected to the proceedings.

“The Peoples Right Briefly Asserted” appeared on 15 January in the midst of preparations for Charles’s trial. Its anonymous author fully endorsed the right of Parliament to try the king. He bases this conclusion on the theory that the law “is more powerful than the King. . . . But the whole Body of the people are more powerful than the Law, as being the parent of it. For the People make the Law.” Unlike William Ball, however, he insists that the people’s power had been transferred to their representatives. The people were above the law, but practically speaking, sovereignty belonged to Parliament.

The tract appeared in a single edition.

The Peoples Right Briefly Asserted.

It is the Judgment of Ancient, and the best of Modern Writers, That the Body of a People, represented in a Convention of elected Estates, have a true and lawful power to despose of things at pleasure, for their own Safety and Security; and in order to that, to despose of the King or Prince, if he neglect his Duty, or act contrary to that end for which he was at first ordained; for that Kings are constituted for the People’s good, not the People made for a King’s pleasure, is a thing granted by all rational men.

That therefore Kings have been, and justly may bee laid aside, or otherwise censured, when they fail of that Duty, Historians will give Examples in all Kingdoms; and Political Writers sufficient Reasons for such Examples. Of which multitude it is not needful to grasp all; but such as have happened in those Kingdoms which are neerest to England, both in Situation and Constitution of Government. Nor is it probable that such Examples had been so frequent, had it not been generally thought a thing consonant to the Laws of Nature and Reason.

The Kingdom of France hath heretofore, not only in the boast of her own Writers, but consent of others, been esteemed a Government of the best Constitution, (though of late years it hath lost, in a high degree, the just Liberty of the Nation), and hath abounded with Examples of this kinde. It is not therefore incident only to those Kingdoms, where the King is apparently Elective, but Hereditary also, as France is accounted. For the People never lost, nor gave away their supream Power of making Election, when need required, even in such Kingdoms. For though inheritance in the Crown were tolerated, to avoid ambitious Contentions, Divisions, Interegnums, and other inconveniences of Elections; yet when greater mischiefs happened, as Tyranny in Government, the people did still retain to themselves a power of curing that Malady; namely, of expelling those Tyrants, and choosing good Kings in their room.

The Parliaments of France (saith Aimonius) had so supream an Authority,1 that not only all Laws were by them made and established, Peace and War decreed, Tributes imposed, and Offices conferred; but Kings also were by the same Authority, for Riot, Sloth, or Tyranny, laid aside, thrust into Monasteries, or otherwise punished; and sometimes, by that Power, whole Royal Families were deprived of Succession to the Crown, even as they were at first advanced by the People. So that (saith he) By whose approbation they were at first preferred, by their dislike they were again rejected. But before we come to particular Instances, let us consider the Reasons.

Whosoever considereth that Kings and all Governors were instituted for the people’s happiness, and made by their consent, must needs acknowledg that end to be first and especially looked into. And because Kings, as men, may stray from their right way, and fail of their Duty; therefore Laws were made for a Bridle to them: which were indeed no Bridle, if there were no power to apply them, and see the Execution done: Which hath made divers of the learned political Writers (for it is not the voice of one) to wonder, that in Legitimate kingdoms (for we speak not of barbarous Tyrannies) any man should be so sottish, as to think or say, that private men should be enabled by the Law to sue the Prince for a small quantity of Land or Goods: and yet that the Representative Body of the whole People have not power to lay the Law against him for Parricide, massacering of the People, and Treason (for that is their word) against his whole Country, and the Being of the Laws themselves: that the Law should use any severity in small things: and give impunity, with absolute license, in the greatest and most heinous offences. And upon that point of a King’s offending against his People and Country, it is that Bartolus speaks,2 when he proveth the whole People to be superior to the King, and Proprietary Lord of the kingdom: whereas the King is but as Steward and Administrator of it.

Therefore (saith he) A King may commit Treason against the People, and be a Traitor and Rebel to his Country: and may justly be deposed, and further punished, by that Lord against whom he hath offended, which is the People, and those who represent them. And if the King (saith he) go so far as to Arms and Force, those Representers are to call the People to Arms, and proceed against him, in all points, as against a publique enemy.

Hence came that old saying of wise men, That in the Nature of Man there are two Monsters, Anger and Lust: and that it is the Office of the Law to bridle these two, and subject them to the rule of Reason. He therefore that would (saith Buchanan)3let loose a King, or any other Man, from the curb of the Law, doth not let loose one Man, but two Monsters, to affront Reason. To the same purpose Aristotle concludeth, that he, which obeyeth the Law, obeyeth God and the Law: but he that absolutely obeyeth a King’s will, obeyeth a Man, and a Beast.

The Law is more powerful than the King, as being the Governor and Moderator of his lusts and actions. But the whole Body of the people are more powerful than the Law, as being the parent of it. For the People make the Law, and have power when they see cause, to abrogate or establish it. Therefore seeing that the Law is above the King, and the People above the Law: it is concluded as a thing out of question, by Buchanan, Junius,4 and many others, that the People of right have power to call in question, and punish a King for transgressing the Law.

If you look after examples, you may find many in almost all the legitimate Kingdoms that are known. Certain it is that the French, by authority of their publike Convention or Parliament, deposed Childerike the first, Sigibert, Theodorike, and Childerike the third for their Tyranny and unworthiness, and set up some of another Family in their rooms; some of them for being too much governed by wanton and wicked Favourites, esteeming it all one, whether himself were extream vicious, or ruled by them that were so. By the same Representative authority, in conventions of the whole people (which were not much unlike the French or English Parliaments) were two Emperors of Germany deposed, Adolphus and Wenceslaus, though not so much bad Princes, as not good enough. The like hath been done in Denmark, and in Sweden, with divers other Kingdoms in Europe, as Hungary, Spain, Portugal, Bohemia, testified by good and authentick Historians.

But in the Kingdom of Scotland their own Historian George Buchanan expresseth in plain terms,5 that he could name above a dozen Kings of Scotland, who, for their bad Reigns, were either condemned to perpetual imprisonment: or else by banishment, or voluntary death, (which some of them chose) escaped the just punishment of their offences.

But least (saith he) any man should think I produce only old and obsolete examples of Kings long ago, such as were Culeous, Evenus, Ferchardus, and the like, I will instance one in the memory of our Fathers. James the third was by the General Consent of Parliament declared to be justly slain for his cruelty, and wicked Raign; and it was ordered for thefuture, That none of those who had any hand, or gave assistance in his death, should ever be questioned, or tainted with any ignominy. That thing therefore (saith he) which being already done, was judged by the State to be well, and justly done, was doubtlesly proposed as exemplary for the future. This James the third was slain in Chase, after a Battel, in which he was vanquished; where Buchanan expresseth, That the State made one War against him to destroy his wicked Councel; but the second War was to destroy the King himself, as being incorrigible.

This Restraint of Regal License the same Author confidently praiseth in his Nation, as a thing not only good and wholesome for the People, but profitable for the Kings themselves, and advantagious to their Posterities, alledging that for a main Reason, Why the Crown of Scotland hath continued the longest of any Crown in one Family, whereas other Crowns in Europe have been often changed from one race to another.

England hath not wanted examples in this kind, though they have not been so frequent as in Scotland; two of the greatest note were Edward the second, and Richard the second, whose unfortunate Raigns are so generally known, and have so often upon this sad occasion in present been produced as instances, that it were needless to dwell upon the particulars of them; therefore I only name them, and forbear also particularly to relate how far from other deviating Princes, as King John, and Henry the third, have been restrained by Parliaments; and how much the best of England’s Princes, such as Edward the first, Edward the third, and Henry the fifth, have freely yeelded to the Controul of that high Court, and thought it no dishonor to them.

Examples also of this kind have happened, and are averred by good Authors, concerning the Popes themselves; namely, that the Cardinals, upon some special occasions, may, without the consent of the Pope, call a Councel, and judg him by it, if by any great and notorious sin he become a scandal to the Universal Church, and be incorrigible, since Reformation is as necessary in the Head, as in the Members; if contrary to his Oath he refuse to call a General Councel, &c. But certain it is, that some of them have been deposed by authority of a Councel. This is (saith Baldus)6in case the Pope be very obstinate. For first, Exhortations must be used; secondly, more severe remedies; and last of all, plain force; and where no wisdom can prevail by Councel, force of arms must be the remedy to cure him. If therefore by consent of almost all the learned men, and many examples in fact, it appear, that a Councel may justly depose a Pope, who calleth himself King of Kings, and challengeth as great a superiority above the Emperor, as the Sun is above the Moon, and more than that, an authority to depose Kings and Emperors when he sees cause: Who may not as well grant, that the publike Councel of a Kingdom may lawfully put down, and punish their King for extremity of misgovernment?

Concerning this power of the people in restraining wicked Princes, Junius,7 in his book Contra Tyrannos, makes a notable inference upon a place in the Prophet Jeremiah, where the Prophet in the eleventh Chapter, and fourth verse, expressly declareth to the Kingdom of Judah, that for the impiety and cruelty of King Manasses, the people were carried away captive by the Assiyrians; upon which place (saith he) very learned Expositors suppose (for we must not think that they were unjustly punished) the people were guilty for not resisting the impiety and cruelty of their King.

But where this power of resisting a King, within the Realm of Judah, lay, whether in the seventy Princes, or more General Assemblies of State, (being a Government far different from ours), I make no Judgment. For the Kings of Judah raigned in a very absolute way, as far as we can perceive, and exercised a very Tyranny, being that Government which God gave them in his displeasure, for not being content to be honored with God’s immediate Government, administered by his inspired Prophets; but desiring a King as the Heathen had. But the Limitation of Monarchy is better understood now by people in their own Countries, and by their own Laws, and therefore by English men in England, whose just Liberties cannot be altogether unknown to those that are wise in their neighbor Nations, who also have title to the same (or very like) Liberties. Neither can it be denied (in this late sad and bloody trial), but that the Parliament of England, if they had a lawful power to proceed in this War, have also a just power to despose of that Victory which God hath put into their hands, as they shall think best for the future security of the whole people, whom they represent. Nor is that security, by the Laws of Reason and Nature, to be made slightly, which hath cost the lives of so many thousands, and so vast an expence of Treasure for the purchase of it. And though they long suffered with patience the pressure of Tyranny heretofore, and moved more slowly to a Vindication than sharp necessity seemed to require, (as being not more afflicted with the sence of their wounds, than grieved to discover the hand that made them), yet wise men will so censure of their past sufferings, and present actions, as neither to think the just Rights of English Freedom lessened by any length of patience, nor the King made more excusable by any continuance and increase of his offences.

finis.

[1. ]Floriacensis Aimoin was a French chronicler of the tenth and eleventh centuries. His chief work was Historia Francorum, or Libri V. de gestis Francorum, which deals with the history of the Franks from the earliest times to 653; it was continued by other writers until the middle of the twelfth century and was printed at Paris in 1567. François Hotman, A Huguenot humanist, in Francogallia (published in 1573) made these points, citing Aimoin as his source.

[2. ]Bartolus was a fourteenth-century Italian jurist and professor of civil law. While I was unable to find the exact source of this passage, it is most likely from his Commentary on the Code of Justinian.

[3. ]The reference is to the Scottish humanist George Buchanan, author of De Jure Regni apud Scotos Dialogus, first published in Edinburgh, 1579. This is presumably a translation from one of the Latin editions because Wing’s Short Title Catalogue notes no English translation of this work until 1680. The quotation cited can be found in the 1689 translation printed for Richard Baldwin, London, 58, Wing B5276.

[4. ]Junius is the pseudonym used by the author of Vindiciae contra Tyrannos (Defence of Liberty against Tyrants), first published at Basel in 1579.

[5. ]See note 3, above.

[6. ]This reference is to Petrus Baldus de Ubaldis, a fourteenth-century Italian jurist and author of Commentary on the Liber Feudorum.

[7. ]See note 4, above.