as follows viz. That if his Majesty or any of his Successors should happen at any time hereafter to Act contrary to those Provisions by which the Privileges and Liberties of the Kingdom were Established that from thenceforth it should be for ever Lawfull for the Subjects without the least Blemish of Disloyalty to Resist and Oppose their Prince This was a Decree to purose by vertue of which as Thuanus observes the Protestant Hungarians Justified their Arms against their King And we may take notice in Contradiction to what our Author Affirms That such Odious Things and their Remedies too where they are allowed are particularly Named and Provided for Therefore we may fairly Conclude that where none of this plain Dealing is to be seen the Constitution does not admit of any such singular Reservations Indeed to talk of a Character for Resistance in a Country which has been Conquered so often and all along Monarchically Governed seems to be a Romantick Supposition For can we imagine that when our Kings had sought themselves into Victory and Power and forc'd a Nation to swear Homage and Submission to them that they should be so easie as to Article away their Dominions make their Government Precarious and give their Subjects leave to Disposess them as often as they should be pleased to say they had broken their Agreement But the Silence of our Laws and History as to any such Compact is a sufficient disproof of it For if there had been any such Enfranchising Instrument how prejudicial soever it might have been in its Consequence yet the natural desire of Liberty would have occasioned the preserving it with all imaginable Vigilance And as it would not have miscarried through Negligence so if Violence had wrested such a pretended Palladium from us the Calamity would have got into the Almanack before this time and been as certainly Recorded as the Destruction of Troy. Since therefore we have no Evidence either for the Possession or so much as for the Loss of this supposed Privilege we may certainly conclude we never had it or at least must grant that no claim can be grounded upon such an Improbable conjecture for Idem est non Esse non Apparere Secondly Our Author urges That when there seems to be a Contradiction between Two Articles in the Constitution the Interpretation ought to be given in favour of that Article which is most evident and important From whence he proceeds to assert That there is a seeming Contradiction between the provisions for the publick Liberty and the renouncing all Resistance And therefore the Constitution ought to be expounded in behalf of the former as being most advantageous to Government Now one who had never read the Statute Book would imagine by this Authors Argument that we had some Laws for the taking up Arms against the King as well as others which forbid it and both equally plain than which nothing is more false And upon supposition there was any such Clash in our Acts of Parliament the Law for Non-resistance being last Enacted must necessarily take place and Repeal whatever was before Established to the contrary But Secondly I Answer That I have already proved that the Rights of the Subject are best secured by Non-resistance and therefore they are no ways inconsistent or contradictory to each other So that our Liberties had much better lye at the Discretion of Kings who have much greater Motives than others to do Justice and give general Satisfaction than to depend upon the Management and Mercy of the People and be liable to such Fatal Convulsions which must happen as often as Discontent and Ambition can impose upon the Weakness and Inconstancy of the Multitude Thirdly His Third Argument is the same with his Second which he has given us in different Words That what we want in Weight may be made up in Number It begins somewhat Remarkably Since it is by Law that Resistance is condemned we ought not to understand it in such a Sense as that it does destroy all other Laws First Now one would have thought that the condemning Resistance or any other Action by a Law had been the only way of doing it to any purpose But this Author seems to draw a consequence of Abatement upon this Doctrine from its Authority as if it was to be less observed because it is Established by Law. But Secondly To give him rather more advantage than the Construction of his Period will allow I Answer That I have already made it appear that to wrest the Laws from their plainest and most obvious Sense is to make them perfectly Useless and that Non-resistance is the best Expedient to preserve the Laws and every thing else that is valuable And therefore though its plain that the Law did not design to lodge the wole Legislative Power in the King yet as its plain that it intended to forbid Resistance in case he should set about it For the Law-makers declare in in as full Intelligible Words as can be conceived that the Militia the Posse Regni was always the undoubted Right of his Majesty and his Predecessors and that its Unlawful to take up Arms against him upon any Pretence whatever Now if its possible for a Law to make or declare a Monarch Irresistible which I suppose no man will deny I desire to know whether it can be drawn up in more significant and demonstrative Terms than this Act before us If it cannot then our Author has no imaginable reason to dispute this Part of the King's Prerogative As for his Instance That the Legislative Power is Invaded and the Constitution of Parliaments Dissolved This Charge is Aggravated beyond all Decency and matter of Fact For it s well known that the King did not pretend to make his Proclamations Equivalent to an Act of Parliament and what his Majesty acted by way of Dispensation was not only directed by the present Judges but grounded upon a solemn Resolution of all the Twelve in Hen. 7th Reign in a Case seemingly Parralell which Sentence has been followed by eminent Lawyers since and never Reversed by Act of Parliament As to the Regulation of Corporations That was a Method begun by Charles the Second a Protestant Prince and Applauded by all the Loyal Party of the Nation Besides the Burroughs were not so prodigiously altered but that we might have had a good Protestant Parliament out of them as appears from the Elections made upon the Writs Issued out in August last where those who were against Repealing the Penal Laws and Tests carried it with great odds against the other Party And since we know his Majesty has returned the Charters to the State of 79. And here it may not be improper to observe That Prerogative has been as Remarkably misunderstood at Court in former Ages of which several Instances might be given but I shall consine my self to the Reign of one who on all Hands is accounted a most Excellent Prince I mean King Charles the
First Now the Lords and Commons in their Petition to the King complain That his Majesties Subjects had been charged with Aids Loans and Benevolences contrary to Law and Imprisoned Confined and sundry ways molested for non Payment That the Subjects had been detained in Prison without certifying the Cause contrary to Law. That they had been compelled to quarter Soldiers and Marriners contrary to Law. That notwithstanding several Statutes to the contrary divers Commissions had been Issued out under the great Seal of England to try Soldiers and Marriners by Martial Law Quarto Car. 1. Rushworth's Coll. To this I might add the Levying Ship Money Coat and Conduct Money c. but I am not willing to enlarge upon so unacceptable a Subject non to discover the Misfortunes of the Father any further than Justice and Duty to the Son obliges me I say the Misfortunes which we see the best Princes through misinformation or improper advice may sometimes fall into However I must crave leave to take notice that these were other manner of Grievances than the Dispencing with Penal Laws both in respect of the Evidence and Consequences of them and yet I am sure the War which was made by the Subjects upon this Score is by our Laws declared an Horrid and Notorious Rebellion This I mention not to justifie the Conduct of the Ministers but to shew that under these Circumstances a mistake in his Majesty ought rather to be lamented than exposed and Magnified at such an enflaming Hyperbolical rate And to this modesty of Behaviour we are now more especially obliged since his Majesty has promised to Redress past Errors which is a plain Argument that some of his former Measures are unacceptable to himself as well as to his Subjects and that he will not pursue them for the future Fourthly Our Author proceeds to argue That the Law mentioning the King or those Commissionated by him shews plainly that it designed only to secure him in the Executive Power for the Word Commission necessarily imports this Since if it is not according to Law it 's no Commission From whence I suppose he infers that those who have it may be resisted Now that this Inference is wide of the Mark appears First Because when this Law was made the King was not restrained from Commissionating any Person whatever in the Field and therefore the Legislators could have no such Design in their View as the Enquirer supposes Secondly The Test Act which was made several Years after the former though it bars the King from granting Military Commands to those who refused to give the prescribed Satisfaction that they were no Papists yet this Statute only declares their Commissions void and subjects them to some other Penalty but it does by no means Authorise the People to rise up in Arms and suppress them and therefore by undeniable Consequence it leaves the other Law of Non-resistance in full force Thirdly This Law which declares it Unlawful to take up Arms against those who are Commissionated by the King was designed as may reasonably be collected from the Time to combat that pernicious distinction between the King's Person and his Authority which has been always too prevalent though in reality it 's nothing but the King's Authority which makes his Person Sacred and therefore the same inviolable Priviledge ought to extend to all those who Act under him Yet notwithstanding this it has often happened that those who pretend a great Reverence for his Person make no scruple to seize his Forts sight his Armies and destroy those who adhere to him under the pretence of taking him out of the Hands of Evil Counselors which has been the most usual and plausible Colour of subverting the Government This Act therefore which was made soon after the Restauration we may fairly conclude was particularly levelled against this dangerous Maxim which had so Fatal an Influence upon the late Distractions Fourthly and Lastly The Enquirer urges That the King imports a Prince clothed by Law with the Regal Prerogative but if he goes about to subvert the whole Foundation of the Government he subverts that by which he has his Power and by Consequence he Annuls his own Power c. First To this it may be Reply'd That bare endeavouring to do an Action though the signs of Executing may be pretty broad is not doing it in the Construction of humane Laws E. G. Drawing a Sword upon a Man is not Murther The intention of the Mind is often impossible to be known for when we imagine a Man is going to do one thing he may be going to do another for ought we can tell to the contrary or at least he may intend to stop far short of the Injury we are afraid of And supposing we had an Authority to punish him there is no reason that conjecture and meer presumption should make him forfeit a Right which is grounded upon clear and unquestionable Law. But Secondly If with reference to the present Case our Author means that the Government is actually subverted as he seems plainly to affirm pag. 7. Then I grant the King's Authority is destroy'd and so is the Property of the Subject too For if the Government is dissolv'd no Man has any Right to Title or Estate because the Laws upon which their Right is founded are no longer in Being But if the Government be so lucky as not to be dissolv'd then the King's Authority remains entire by his own Argument because it 's supported by the same Constitution which secures the Property of the Subject In his Sixteenth Paragraph we have a mighty Stress lay'd upon the difference between Male Administration and striking at Fundamentals as if it was Lawful to resist the Prince in the latter Case though not in the former But if this Distinction had been own'd by our Constitution we may be assured we should have had a plain List of Fundamentals set down in the Body of our Laws particularly we have all imaginable reason to believe that these Fundamentals would have been mentioned and saved by express Clauses and Provisoes in those Statutes which forbid Resistance For without such a direction it would be impossible for the Subject to know how far his Submission was to extend and when it was Lawful to make use of Force Such an unregulated Liberty would put it into the Power of all popular and aspiring Male Contents to corrupt the Loyalty of the unwary Multitude as often as they thought fit to cry out Breach of Fundamentals And at this rate it is easy to foresee what a tottering and unsettled condition the State must be in And therefore according to the old Maxim for which there was never more occasion Ubi Lex non Distinguit non est Distinguendum I have now gon through his Principles and I think sufficiently shewn the Weakness and Danger of them And if so his Catalogue of Grievances signify nothing to his purpose though there was much more aggravation and Truth in them than there is But time has now Expounded the great Mystery and made it evident to most Mens Understandings that our Authors Party has fail'd Remarkably in Matters of Fact as well as in Point of Right For they have not so much as attempted to make good the main and most invidious Part of the charge against his Majesty though to omit Justice Honour and Interest has so loudly called upon them to do it Their giving no Proof after such Importunity of their own Affairs is a Demonstration they never had any For how defective soever they may be in other Respects we must be so just as to allow them Common Sence THE END * Letter to the Convent
in a Publick and Peaceable Way These Unproclaimed Expeditions have been always thought unjustifiable and contrary to the Law of Nature and Nations For those who have a Just Tenderness for the Lives of Men who have any Regard to Justice or the Repose of Christendom will try all other Arguments before they Dispute the Cause at the Swords Point For besides the Roughness of such a Method if Princes should make a practise of Invading each other without warning Men would be almost obliged to sleep in Armour and the World must be always kept up in a posture of Defence for fear of being surprized Now this would be a very troublesome and expensive way of Living and make all Neighbouring Kingdoms especially very distrustful of and disaffected towards each other I know His most Christian Majesty complains in his Memorial That He has been ill used by the Court of Vienna but then He might have pleased to have told the Emperor so before the Siege of Philipsburgh And the Action was still more Unaccountable if he went as who knows but he might upon the bare Presumption of an Injury and relyed upon the Intelligence of a few Sceptical Obnoxious and Discontented Germans who lay under the Imperial Bann And to mention nothing further if this very Disputable Right was only an Expectancy which would have admitted of Slow Forms and kept cold well enough till had fallen as any one might fairly conclude from the Numbers and Inclinations of his Friends in the Empire this was a further Aggravation of the Unreasonableness of his War. I confess if all these hard things are true of the French King I don't wonder if the Enquirer has levelled a whole Paragraph against Him and I wish the Emperor may recover just Damages for so Secret and Violent an Invasion All this while we have been Kings and Emperors but now we must Reign over our selves no longer but descend into the Melancholy state of Subjection However to do the Author right he has put the Yoak on so favourably that whenever we find it galls us we may throw it off again and return to our former Independency For he gives us to to understand Sect. 3. That the True and Original Notion of Civil Society and Government is that is a Com-promise made by such a Body of Men by which they resign up the right of demanding Reparations either in the way of Iustice against one another or in the way of War against their Neighbours to such a single Person or to such a Body of Men as they think fit to trust with this Now not to Examine how our Author comes to know that the Original Notion of Society was the True one It 's pretty apparent his Notion of it is neither Original nor True not Original because it does not comprehend the most Antient beginning of Government viz. Paternal Authority and Conquest in which Cases Men have not the liberty of Articling for Priviledges but must submit to their Parents and Conquerors whether they think fit to trust them or not Secondly His Notion is defective in Point of Truth for he has only restrained his Men from Acting Arbitrarily upon one another or from Fighting a Foreign State without Commission but as for their Governours they may resist them for all his Diffinition when they please for having resigned nothing but their right of demanding Reparations either in the way of Justice or War against their Fellow Subjects or Neighbouring States it follows that one Branch of their Natural Liberty is reserved to them to Fight their Prince with upon Occasion This Conclusion if we had nothing else to infer it follows evidently from his own Principle for since Government is only a Trust committed by the People to a Single Person c. and all Trusts as he affirms in this Section by their Nature import that those to whom they are given are accountable Nothing is more plain then that they may discharge themselves from Subjection whenever they shall think fit to say Their Governours have not kept Touch with them He proceeds to tell us That the Executive Power when separated from the Legislative is a plain Trust and no more than a Subordinate Authority From hence we may observe First That by this Authors Concessions the People have not the Legislative Authority for he owns part of it is in the King from whence it follows that the whole Body of the People is not the Supream Authority nor consequently can call their Prince to Account without his own Consent Secondly That part of the Legislative Authority which is lodged in the People is not given them at large to be exerted at their pleasure but depends upon Stated Rules and Limitations and can only be exercised by their Representatives in Parliament Nay it 's so precarious a Privilege that without the King's leave they can never make use of it for it 's neither Lawful for them to Convene themselves nor yet to Sit any longer than the King pleases For though there is an Act for a Triennial Parliament yet if the King Omits the Calling of them within that time there is no provision made to Assemble themselves which is an Evidence this Power was never conveyed to them by this Act For if it had the Methods of putting it in Execution would have been Adjusted And if the King should refuse to Issue out Writs the Chancellor would have been Authorized to do it Which Power upon the Suppositition of intermediate Failures would have been handed down as low as the petty Constables as it was proposed by the Parliament Assembled in 40 to Charles the First Now if the People have no share in making of Laws but by Representation in Parliament and the Being of this Assembly depends upon the Prince's pleasure then either the King is the Supream Authority in the Intervals of Parliament which may be as long as the Crown thinks fit or else there is no such thing as a Supream Authority in the Nation and consequently no Government Further when the Two Houses are actually Convened when they are Dictating Law and Justice to the Nation and Cloathed with all the Advantages of Solemnity and Power they are then no more than Subjects they are lyable to the highest Penalties if they are proved guilty of those Crimes which deserve them for Felony and Treason are expresly excepted out of their Privileges But to consute the Author's Notion of Government more fully and especially to make his Application of it Unserviceable I shall endeavour to prove Two things against him First That a Trust does not always imply the Person accountable to whom it 's made Secondly That the Kings of England hold their Crown by right of Conquest and Succession and consequently are no Trustees of the People 1. A Trust does not always imply the Person accountable to whom it 's made which I shall briefly make good these Three ways First From the common Notion of a Trust. Secondly From the
Enquirers Concessions Thirdly From a considerable Instance in our own Government First From the common Notion of a Trust For what is more generally understood by trusting another than that we lodge our concerns with him and put them out of our own disposal When I trust a Man with my Life or Fortune all People agree that I put it in his Power to deprive me of both For to deliver any Property to another with a Power of Revocation is to trust him as we say no farther than we can throw him He that can recover a Sum of Money he has deposited when he pleases to speak properly has it still in his Custody and trusts his Friend no more than he does his own Coffers And therefore if we consult our thoughts we shall find that a Trust naturally implies an entire reliance upon the Conduct and Integrity of another which makes us resign up our Liberty or Estate to his Management imagining them safer in his Hands than in our own In short a Trust where there is no third Person to judg of the performance as in these Pacts between Subjects and Soveraign there is not In this case a Trust includes a Translation of Right and in respect of the Irrevocableness of it is of the Nature of a Gift so that there seems to be only this difference between them that a Gift ought to respect the Benefit of the Receiver whereas a Trust is generally made for the Advantage of him who conveys it Secondly By our Author 's own Concessions a Trustee is sometimes unaccountable for he grants a Man may Sell himself to be a Slave p. 1. And when he has once put himself into this condition his Master has an Absolute Soveraignty over him and an indefeasable right to his service so that notwithstanding all the unreasonable Usage he may meet with he can never come into his Freedom again without the consent of his Lord. This I take to be an uncontested Truth and if it was not St. Peter's Authority ought to over-rule the dispute Who charges those who were in this state of servitude to be subject to their Masters with all fear not only to the good and gentle but also to the froward 1 Ep. 2. 18. Thirdly I shall prove the unaccountableness of a Trust from a considerable Instance in our own Government The House of Commons V. g. are certainly Trustees for the Towns and Counties who choose them the People resign up the disposal of their Rights and Properties into their Hands in hopes of a good management But suppose they prevaricate in their Employment and betray their Electors does this Impower the People to lay their Representatives by the heels when they come into the Country or to punish them farther as their Wisdoms shall think convenient If so then the last resort of Justice must lie in the Sovereign Multitude who have neither capacity to understand the reasons of Government nor temper and tenderness to manage it 'T is pitty the Mobile in Henry the 6th his Reign had not this discovery when the Right of choosing Members was limitted to Forty Shillings per Annum Free-hold whereas before all Tenures if not all Persons had the liberty to elect without exception but this Act in all likelihood barr'd no less then a Fifth of the Nation from this principal Post in the Government And if Columbus had not given them a lift by finding out the West-Indies and abating the value of Money their Grievance had continued to this day as heavy as ever We see therefore that the Author's Notion of a Trust will not hold Water and if it would it can do him no Service for I shall prove in the Second place that the Kings of England hold their Crown by Right of Conquest and Succession and consequently are no Trustees of the People I shall begin with the Point of Succession which because it's generally received I shall only mention an Act of Parliament or Two for the proof of it In the first of Edward the Fourth Rot. Parl. where the Proceedings against Richard the Second are repealed it 's said That Henry Earl of Derby afterwards Henry the Fourth Temerously against RightWiseness and Iustice by Force and Arms against his Faith and Ligeance rered Werre at Flint in Wales against King Richard the Second Him took and Imprisoned in the Tower of London in great Violence and Usurped and Intruded upon the Royal Power Estate and Dignity And a little after they add That the Commons being of this present Parliament having sufficient and evident knowledge of the said Unright-wise Usurpation and Intrusion by the said Henry late Earl of Derby upon the said Crown of England knowing also certainly without doubt and ambiguity the Right and Title of our said Soveraign Lord thereunto true and that by God's Law Man's Law and the Law of Nature He and none other is and ought to be their true right-wise and Natural Leige and Soveraign Lord and that He was in Right from the Death of the said Noble and Famous Prince his Father Richard Duke of York very just King of the said Realms of England do take and repute and will for ever take and repute the said Edward the Fourth their Soveraign and Leige Lord and Him and his Heirs to be Kings of England and none other according to his said Right and Title In the first of Richard the Third there is another Statute very full to this purpose which begins The Three Estates c. But I shall pass over this and proceed to the Act of Recognition made upon King Iames the First his coming to the Crown Wherein it 's declared That He was Lineally Rightfully and Lawfully Descended of the Body of the Most Excellent Lady Margaret Eldest Daughter of the Most Renowned King Henry the Seventh and the High and Noble Princess Queen Elizabeth his Wife Eldest Daughter of King Edward the Fourth The said Lady Margaret being Eldest Sister of King Henry the Eighth Father of the High and Mighty Princess of Famous Memory Elizabeth late Queen of England In consideration whereof the Parliament doth acknowledge King Iames their only Lawful and Rightful Leige Lord and Soveraign And as being bound thereunto both by the Laws of God and Man They do recognize and acknowledge that immediately upon the Dissolution and Decease of Elizabeth late Queen of England the Imperial Crown of the Realm of England and all the Kingdoms Dominions and Rights belonging to the same did by Inherent Birth-right and Lawful and undoubted Succession Descend and come to his Most Excellent Majesty as being Lineally Iustly and Lawfully next and SOLE HEIR of the BLOOD Royal of this Realm as it is aforesaid And thereunto they do most Humbly and Faithfully submit and oblige themselves they Heirs and Posterities for ever until the last drop of their Bloods be spent So much concerning the Succession where by the way we may observe the Deposing Doctrine is directly pronounced unlawful as appears from the
charged with these Failures while they were living But after they were dead the Custom was to Arraign their Memories and deny them the Honor of a Funeral Solemnity Which punishment was likewise inflicted upon the Iewish Kings who had been very irregular and oppressive in their Government 2 Chron. 24 25 and 28. 27. From all which it appears that a King 's Swearing at his Coronation does not make his Crown forfeitable or subject him to the Censure of the People And since the Breach of an Oath does not imply a forfeiture of Right since the Kings of England claim their Authority by Conquest and Succession from hence these Two Corollaries naturally follow First That with us Power always proves it self unless it appears that it 's given up or limited by any special Agreement Secondly That the Liberties of the Subjects are not founded upon the Reservations of an Original Contract For a Conquered People must not pretend to make their own Terms And therefore their Priviledges are not of their own Creating but Acts of Royal Favour and Condescentions of Soveraignty Indeed when the People are not forced into Submission but freely Elect their Monarch there all remote Inferences and doubtful Cases ought to be Interpreted in favour of the Subject because the Form of the Government had its Beginning from them and in this Case only it is that Liberty proves it self But where the Limitations of a Monarchy are the Condescentions of a Conqueror or his Successors there we are not to stretch the Priviledge of the Subject beyond express Grant. So that whatever Rights or Branches of Government are not plainly conveyed away must be supposed to be still lodged in the Crown For since the Prince was once Vested with Absolute Power and has afterwards bounded himself by his own Voluntary Act The Abatements of his Authority are to be measured by his own evident Declarations and not by any conjectural and consequential Arguings And here that Celebrated Maxim takes undoubted place That all Acts which are made in destruction of Common Law or Antecedent Right are to be Construed strictly and not drawn out into Corollaries and parallel Cases From whence it follows That if it was unlawful at first for the Subjects to resist their Soveraign it must still continue so unless they can prove he has relinquished this part of his Prerogative and given them an express Liberty to take up Arms when they think it convenient which I believe will be hard to find in our Constitution I Confess there is a Resistance Charter granted by King Iohn but such a one as is no ways serviceable to our Author For First It 's a plain Concession from the Crown and consequently far from the nature of a Mutual and Original Contract Secondly Here is no Deposing Power given in case the Articles were broken But on the contrary upon the supposition of a Rupture there is an express Proviso for the security of the King's Person and Royalty for a little after the Clause of Salva Persona nostra we have these remarkable Words Et cum fuerit Emendatum Intendent nobis sicut prius fecerunt That is if the King should fail in his Promise and constrain them to make use of Force When their Grievances were redressed and they had put themselves in Possession of their Rights They should then be obliged to obey him as formerly Matth. Par. p. 219. Thirdly This Charter was extorted from the King in a Menacing and Military manner The Barons were up in Arms the City of London declared for them and received them and the King was deserted by his own Army whereas before this Grant the Subjects had no colour of Authority to Levy Arms against the King. Now Rebellion is a very ill bottom to found our Liberties upon The advantages which are gained by such Monstrous Violences as these are no more to be insisted on than the Acquisitions of Piracy and therefore Fourthly This Charter being obtain'd in such an undutiful and illegal way is without doubt one great reason among others why it has been always counted a Nullity for that it 's no part of our Law I shall fully evince First From the Transactions in the Reign of Henry the Third for first in this King's Charter there is no notice taken of any Grant made by King Iohn whereas in the Confirmation of Magna Charta by Edward the First the granting it by Henry the Third is expresly mentioned and the Liberty recited at large Which is a plain Evidence that the one was not looked upon to have the same Authority with the other Secondly That the Magna Charta of Henry the Third was a pure Act of Grace to the Subject and no Confirmation of an Antecedent Right appears from the Instrument it self where in the Preamble the King declares That out of Our meer and free Will We have given c. And towards the end That for this Our Gift and Grant of these Liberties Our Arch-bishops Earls c. have given us the fifteenth part of their Moveables Now besides the wording of the Act which runs as clear for a Voluntary Concession as is possible the very consideration which was given the Crown is a sufficient Argument that the Subjects had no Title to these Liberties before For who can imagine they would have purchased that which was their own already at so dear a rate Thirdly This Charter of Henry the Third though it contains much the same Liberties with the former yet it has none of the same Ratification there are no Proviso's for Resistance in it but instead of Distraining and taking of Castles c. there was a Solemn Excommunication denounced by the Bishops against all Violators of this Law. So that now the Subjects were evidently returned to their former State of Passive Obedience And therefore those Barons who towards the latter end of this King's Reign took up Arms in defence of their Privileges as Matth. Paris relates were disinherited by a Parliament at Winchester which was soon after confirmed in another Parliament at Westminster Sir W. Raleigh Priv. of Parl. Ap. 31. More to the same purpose may be seen in the Law called Dictum de Kenilworth For though this Order was made by no more than a Committee of Twelve Peers yet they having an Absolute Delegation as to this Point from the King and the Members of Parliament what they agreed upon has the full Validity of a Law. Fourthly That King Iohn's Charter which warrants Resistance though within a Rule had never any Legal Authority is evident from the Militia Act 14 Car. 2. where the Parliament declares That the Militia was ever the undoubted Right of his Majesty and his Predecessors But this was a great Mistake if King Iohn's Grant had been Law For by vertue of that Charter provided the King receded from his Articles the Militia was lodged in the Barons and the People were obliged by Oath to assist them against the Crown Now if the case
who has seen any thing of our Hâ—stories so that this Notion of tâ—e Enquirers is perfectly Chimerâ—al as to us For granting as Mr. Hunton Observes Treatise of Monarchy pag. 16. That Subjection is not immediately founded in Conquest but in Consâ—rt yet Consent in such a Case is forced necessary and unavoidable and includes an entire Submission to the Conquerors pleasure 〈◊〉 when a King has his Enemies for a Canquered People are no 〈◊〉 at first 〈◊〉 such an Advantage he will scarcely be persâ—â—ded to put any conditions of Forfeiture into his Title and Reigâ—â—â—â— their Courtesy For how frank soever he or his Successors mâ—y be in other respects it 's unimaginable to suppose they will 〈◊〉 them any Dethroning Power in their Charter And 〈◊〉 tâ—e Case stands thus we may fairly conclude That that Magnificency of Style with which our Kings are always mentioned has a suitable Authority belonging to it that those August Names of Imperial Crown Sovereign Supream c. which we meet with so often in our Courts of Justice Conveyances and Acts of Parliament are no empty insignificant Sounds nor ever designed to describe a Precarious Prince who may be Resisted or Deposed at pleasure In his Sixth Section he will allow no Prince to have a Divine Authority unless he can prove his Delegation by Prophets c. And yet St. Paul calls the Roman Emperor the Minister of God and I believe the Enquirer will grant that neither Claudius or any of his Family were Proclaimed by Bath Coll. or Crowned by an Angel from Heaven I somewhat wonder that our Author should advance such Propositions as these who grants Sect. 10. That the Submission of the People together with a long Prescription makes a Prince a legal Governor and when his Power is once settled by Law he has a good a Right to it as any private Person can have to his Property And immediately after he affirms That though a Man has acquired his Property by Humane means such as Succession c. yet he has a security for the Enjoyment of it from a Divine Right Now if Prescription and Succession gives a Prince a good Humane Title and this Title is confirmed by the Rules of Natural and Revealed Religion One would think since he is thus secured in his Government by a Divine Right he had a Divine Right to govern But after all I freely yield the Enquirer That we cannot reasonably conclude from bare Possession that it is the Will of God such Persons should be our Governors for the most part we ought to conclude the contrary because as he well observes this Argument from Possession Iustifies all Usurpers when they are Successful By his Seventh Paragraph we are to take Our Measures of Power and by consequence of Obedience from the express Laws of the State from the Oaths which are sworn by the Subject c. To make this reasoning applicable to the Case in hand I shall only observe at present that by his own Concessions Sect. 13. There are many express Laws made which lodge the Militia singly in the King that make it plainly unlawful upon any pretence whatever to take up Arms against his Majesty or any Commissionated by him and that these Laws have been put into the Form of an Oath and sworn by all those who have born any Employment in Church or State. How well he reconciles the Doctrine of Resistance with these Remarques will be seen afterwards The Eigth Section brings us from Natural Religion to the Scriptures of the Old Testament but it 's only to shew That they are not to be made use of in this matter Now under favour I conceive These Scriptures are not so foreign to the Point as the Enquirer supposes For though the Jewish Government was particularly designed for that People yet being settled by Divine appointment it ought to be highly esteem'd and imitated in its standing and general Maxims by the rest of the World. God perfectly understands the Tempers Weaknesses and Passions of Mankind which makes him infinitely more able to judge what sort of Polity best Answers the Ends of Society So that whatever is not of a peculiar and temporary Nature in his Establishment should be the Model of their Government And to apply this Observation since there were no allowances of Resistance in the Jewish Government But certain Death was the ordained Consequence of Disobedience to the Civil Power Deut. 17. 12. We ought to conclude that such a general Submission is most rational and advantageous for the publick Good and therefore are to take it for granted that all Christian States especially are settled upon this Passive Principle where there are not express Proofs of the contrary For it 's no Honour to the Memory of our Forefathers to infer by remote and strained Implications that they thought themselves wiser than God Almighty To the former part of his Ninth Section I have nothing to object but am ready to joyn Issue with him upon his Notion As to what he mentions concerning The State of the Primitive Christians I shall have occasion to touch upon it afterwards I shall pass over his Tenth Section as being in a manner comprehended in his Ninth and proceed to the Eleventh which brings us home to our English Government Where as a Corollary from his former Discourse he concludes That the Question in debate Must be determined by the fixt Laws and Regulations of the Kingdom Which is some comfort for then we ought not to be over-rul'd by any General Considerations from Speculations about Original Liberty or Arbitrary Constructions of Salus Populi Nor yet by the Authorities of Civilians especially those Foreign ones who have had a Republican Byass clap'd upon their Education In this Paragraph he informs his Reader That the King's Prerogative is bounded and that it's Injustice to carry it beyond it's Legal Extent which no one denies As for his Instance I cannot well imagine what he brought it for I hope it was not to try if he could make some People believe that his Majesty had Levy'd Money by his Army for this he knows is not True. But when any of this Violence happens he tells us the Principle of Self-Preservation seems to take place and to warrant as violent a Resistance It seems to take place i. e. he is not sure on 't But by his own Concessions he may be sure of the contrary if the exercise of this which he calls Self-Preservation be restrained by the Constitution whether it is or not besides what has been said already will appear farther afterwards There is nothing more certain than that as he observes Sect. 12. The English have their Liberties and Properties secured to them by the Constitution But an allowance of fighting their Prince in Defence of these Liberties c. is so far from being Reserved to them that it 's plainly forbidden by Many Possitive and Express Laws Indeed how is it possible such a Liberty should be Reserved in
Authority of the Kingdom Declares their Prince Irresistible this makes him as much so as if he had given himself this Power by Conquest and had been the most Absolute Monarch in the World. And as this Priviledge is clear so he may make it Immortal if he pleases provided he has a Negative upon the Remainder of the Legislative Power as the King has upon the Two Houses so that the Constitution cannot be alter'd without his own Consent Nay if the People have given up their Rights of Resistance by their own voluntary Motion they are bound in Honour as well as Justice to maintain their own Act. So that it seems more unaccountable not to Acquiesce in this Case than if they had been forc'd into such a submission Though it 's not improper to Observe That the Act which I have now in view viz. 13 Car. 2 which tells us It 's unlawfull to Levy War Offensive or Defensive against the King. Does not so much pretend to vest the King with any new Authority as to acknowledg his Antecedent Right where it 's likewise Declar'd that The Militia has ever been the undoubted Right of his Majesty and his Predecessors Which is as plain a Concession as can be that this Parliament did not believe our Government began upon Hobs his Pacts or that the King had his Power Originally from the People But supposing the Government was Founded in the Voluntary consent of the People the contrary of which has been proved yet after they have once by the most Solemn and Deliberate Act bound up their Hands and made it Unlawful under the highest Penalties to use Force against the Magistrate in this Case it 's unreasonable to suppose they can resume their Antient Liberty at pleasure For that which a Man has Alienated by his own free Grant is as much out of his Power as if he had never been possess'd of it at all So that it 's as great Injustice to wrest back that which I have once given away as to invade my Neighbour in his Original Property If it 's Objected That such Laws of Non-resistance as this are to be understood with a Tacit Exception Viz. Provided the Magistrate does not press too hard upon the Constitution and Violate the most Fundamental Parts of it To this I Answer First If a Law which is so absolutely against all Resistance as appears both by the clear and comprehensive stile it 's Pen'd in and by the time in which it was Enacted which was immediately after we were emerged out of the Miseries of a long Rebellion so that we have all imaginable reason to believe the Wisdom of the Nation design'd to make the most effectual Provision to secure us from the like Calamity If I say a Law thus remarkquibly worded and circumstantiated may be eluded by Distinctions and Reservations then the Statute Book is little better than wast Paper for at this rate there is nothing so plain but may be glossed away into insignificancy If he Objects That the Natural Right we have to preserve and protect our selves will justify the Defence of our Lives and Liberties against all Invaders whasoever notwithstanding any positive Municipal Prohibitions to the contrary To this I Answer That to Object thus is to Argue against himself as well as against Reason For he grants by undenyable Consequence Sect. 9. That the Primitive Christians were obliged to Non-resistance because they Lived under a Constitution in which Paganism was Established by Law. He should have said In which Christianity was prohibited for it was possible for both Religions to have been Established as they were in the time of Constantine Now if a Municipal Law ought to be over-ruled by the Law of Nature when they happen to clash then the Christians who lived under the Heathen Emperors might Lawfully have taken up Arms against the Government because they were deprived of their Lives and Fortunes against all Equity and Humanity For to persecute Men so remarquibly Regular and Peaceable both in their Principles and Practices is as manifest a Violation of the Law of Nature as is possible And if it was Lawful for them to resist then they seem bound in Conscience to do it whenever they had a probability of prevailing For without doubt it 's a great fault for a Man to throw away his Life impoverish his Family and encourage Tyranny when he has a fair Remedy in his Hand But our Author has not yet been so severe as to bring in the Martyrs Felo de se. But Secondly The Law of Nature obliges all Men to stand to their Contracts though they have made them to their Disadvantage They must not as the Scripture speaâ—â— change though they Have sworn to their own hurt Psal. 15. Except the Matter of the Contract be Malum in se. But for Men to bar themselves the use of some Liberties though never so unquestionable with respect to some particular Persons and to tye up their Hands in reference to their Governors is no Malum in se for in such a case they dispose of nothing but what is their own and that upon a valuable consideration Thus much is acknowledged by our Author Sect. 1. For he tells us That by the Law of Nature a Man may bind himself to be a Servant or sell himself to be a Slave by which he becomes in the Power of another so far as it was provided by the Contract So that where the Contract is clear it ought to be punctually observed From whence it follows That when a Nation shall Deliberately and Authoritatively declare either that it always was Unlawful for them to take up Arms against their King or at least that it should be so for the future After they have thus Solemnly disclaim'd all manner of Right or pretence to Resistance to defend themselves by Force is a notorious Infraction of their Promise and as much a breach of the Moral Law as of the Statute Book Thirdly Because the Authority of the Constitution must be weakned and the Ends of Government lost by allowing the Subject a Latitude of Exposition therefore the Wisdom of the Nation has thought fit to stick by the Letter when it 's plain and unquestionable though it is apparently against the intention of the Law. Of this Practice I shall give a considerable Instance In the Reign of Henry the Sixth there was an Act made which I have already cited to another purpose in which all Persons not possessed of Forty Shillings per Annum Free-hold are declared uncapable of Electing Knights for the County The Design of which Act was to strike the Mobile out of the Government and that none but Persons of presum'd Discretion might have a share in choosing their Representatives But the value of Money being so prodigiously altered since that time Fifteen Shillings now probably being not more than one then This alteration has thrown the Elections upon Multitudes of People who are apparently excluded by the intention of
be allowed otherwise it s perfectly insignificant for I suppose the Prince will scarcely tell them when they are to Rebel When such singular Positions as these are Advanc'd Governours must needs be alarmed and uneasie and take the first opportunity to crush their Subjects and disarm them of that dangerous Power which is so likely to be turned against themselves which Design if not actually compassed would be often attempted and consequently the People must be either Enslaved or Embroyled These are the natural Effects of such Licentious Tenets they either prove the Inlets of Arbitrary Power or else keep us in perpetual Commotions and deprive us of all the Advantages of Society Farther though the Supream Magistarte is unaccountable yet his Ministers are not Those who Execute his Illegal Commands may be punished for their Complyance And if the present Authority should protect them from Tryal and stop the Course of Justice They have the uncertainty of their Princes Humour the Fears of his understanding their false Conduct but especially the Vengeance of another Revolution to keep them in awe Now the Conjuction of all these Arguments for Passive Obedience are found both in Reason and upon Experiment to be a much better Fence for the Propâ—â—â—y oâ— the Subject than to authorise Resistance upon any account whatever For this cannot be done without making every individual Person a proper Interpreter of so dangerous a Law and giving the People leave to discharge themselves of their Allegiance whenever they please Now to give Pride and Poverty and Revenge a general Liberty to disturb the publick Peace to allow the Subjects to fire upon the Crown as often as they are either ambitiously enclined or unreasonably frighted and imposed upon as in effect to let loose the Principles of ruin upon a Nation and to arm all the wild and ungovernable Passions of Mankind to its own destruction And since Non-resistance has so many Advantages above the contrary Tenent we ought to interpret the Law I have been speaking of to this Sense since not only the plain Words but the Common Interest and Safety require such an Interpretation For the Design of all Laws being to provide for the general convenience they are by no means to be set aside though the keeping of them should prove uneasie to some particular Times and Persons There is no absolute Security in this World and therefore we ought to stick to those Measures which afford us the best especially when they are legally Established so that we have no liberty to change them though they were less commodious And though the Doctrine of Non-resistance may sometimes press hard upon the Subject yet this very rarely happens for generally speaking the most Arbitrary Rigors of the Prince are more tollerable than the Miseries of Disobedience and Civil Distractions I shall give a very gentle Instance viz. The late Expedition of the Mobile who besides the Terror and Barbarity of their Irruption have in a few Days violated more Property than probably has suffered by the stretch of the Prerogative in an Hundred Years Therefore since unconditional Submission is the best Expedient to prevent perpetual Broyls and Insurrections and the only solid Foundation to fix the Government upon we ought in Duty to God and our Country to adhere unalterably to this Doctrine And if we happen to fall upon a less fortunate Age we must take our chance contentedly and rest the event with Providence and not fly of from those Principles which carry so vast an odds of Advantage in them by the Practice of which our Fore-Fathers have been and our Posterity is likely to be happy And now having shewn the unsoundness of his main Principle a little trouble will Answer the rest of his Arguments First He tells us That all general Words are supposed to have a tacit reserve in them where the matter seems to require it To this I Answer That in this Case the matter does not seem to require any reserve because such an Exception would frustrate the Intent of the Law and undermine Government As for his Instances in Children and Wives they come very much short of his Point For though Children notwithstanding the general Words in Scripture are not to do every thing their Parents may command them yet certainly they are not to enter into Confederacies against them to Fight them and turn them out of their Houses upon any provocation whatever and therefore much less is the Father of their Country to be used in that manner His Instance in Marriage is as unlucky as the former Where the Parties swear unconditionally to cohabit together till Death and yet as he observes it 's not doubted but that Adultery disengages them from their Contract But the reason why the universality of the Terms are limitted in this Case is because we have an express Determination of our Saviour to Warrant it Matt. 19. 9. Let him produce any such Authority for Resistance either from Gospel or Law and we will yield the Point In return to his saying Odious Things are not to be suspected and therefore not to be named I desire to know of him what is more Odious than Knavery yet all Securities in Law are plain suspicions of such Scandalous dealing and make express provisions against it though the Quality of the Persons contracting are never so unequal So that if there had been any such Contract between our Kings and People as some Men fancy the Terms of Forfeiture would no doubt have been as plainly express'd as they are in private Concerns And that this is more than a conjecture is evident from Practice of Flanders and Poland where such express Allowances of Resistance have been actually made how Politickly I shall not determine as appears from Meierus and Chytraeus as they are cited by Grotius de Iure Belli c. Annot. ad Cap. 4. Lib. 1. Sect. 14. Nay himself vindicates the Dutch from the charge of Rebellion ahainst Philip the Second upon this Ground viz. Because it 's confest by Historians on all sides that there was an express Proviso in the Constitution of their Government that if their Prince broke such and such Limits they were no more bound to obey him but might resist him which Original Contract was notoriously broken by the Duke of Alva their Governour Reflections upon Parliam Pacif. p. 6. I shall give another Instance out of Thuanus to this purpose relating to Hungary This Historian Lib. 133. informs us that the Protestant Nobility of that Kingdom wrote to the States of Bohemia Siesila and Moravia in which Letters they Complained very much of the hard Usage They had received from the Emperors Ministers c. And after a recital of their Grievances which were of the most provoking Nature imaginable They add that amongst their other Priviledges which ought to be Confirm'd in every Convention they have this remarkable one Granted in the Reign of King Andrew the Second An. Dom. 1222. the Tenour of which is