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
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
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
had been doubtful the Judgment of a Parliament ought to have put an end to the Controversie This Legislative Council has a Power to interpret as well as to alter or enlarge the Constitution an Authority to tell us what has been as well as what shall be Law. Such publick Determinations are as it were first and self-evident Principles in our Government they have a kind of Practical Infallibility in them and ought not to be disputed except where they plainly contradict the Laws of God. Fifthly and Lastly If this Singular Charter had ever been part of our Constitution as it 's plain it never was yet now it can have no manner of Force because the forementioned Statute concerning the Militia not only declares it to have been but likewise to make the Case more incontestable Enacts it unlawful to Levy War Offensive or Defensive against the King. But of this more hereafter If it 's Objected That unless we are allowed to Assert our Rights by Force when they are Invaded the Laws which secure them to us are insignificant because the King may break down these Fences when he pleases To this I Answer That these Laws upon this Supposition are far fâ—om being insignificant because First They are the Boundaries of Right They clearly distinguish the Property of the Subjects from the Prerogative so that the Prince can seldom encroach upon them in any considerable Measure without being Conscious of the Injustice Secondly By vertue of the Laws we are better assured of the Prince's Protection against the Injuries of all our Fellow Subjects which is no small Advantage Thirdly We have the Prince's Honour and Conscience and Interest to secure us I say his Interest for notwithstanding the Subjects were never so well convinced that Resistance is utterly unlawful yet it is by no means adviseable for Princes to try their Patience too far For Religion has a very slender Influence upon the World now a days Nothing is more frequent than to see Men live in those Practices which they know to be Immoral Now Oppression is apt to make wise Men Mad. Nothing touches them so much to the quick as the breaking in upon their Properties and the undermining the Publick Securities And therefore when the Government sits thus uneasy upon them they will be apt to fly out into Disorders notwithstanding all the Restraints of Law and Conscience to the contrary Now since Princes are supposed to be acquainted with the Frailty and Degeneracy of Mankind This consideration of danger will generally keep them within compass and check their Arbitrary Designs though the Principles of Honour and Integrity should happen to prove insignificant This one would think a sufficient Security and more than this is neither allowed by our Government neither can it be by any other First We have no reason to believe our Government permits us to maintain our Rights by Arming against our Prince not only because our Laws plainly declare against all Resistance as I shall shew afterwards but because the Libertys of the Subject were Acts of Grace from the Crown and since they had no right to demand them by Force they must take them upon such Conditions as they are offer'd Now things standing thus we have no imaginable reason to conclude our Kings had any intention to forego their irresistable Authority except they had signed it away in so many Words we are not to suppose they would part with such an inestimable Jewel and be so Prodigal of their Favours without the plainest Evidence Indeed the granting this Liberty would be equally prejudicial to Prince and People and render all Government Impracticable For Secondly The Ignorance and Partiality of the greatest part of Mankind is such that to make it Lawful to resist our Governors whenever we think it necessary is an infallible Expedient to keep a Nation almost always embroyl'd and to banish Peace and Happiness out of the World. Such an allowance as this does in reality dissolve all Government and throw us back into a State of Nature For when a Man may make use of all the Force he can get to redress his Grievances to carve out his Satisfaction and to possess himself of all those Rights he fancies he has a Title to his owning Authority is but a Complement for he is certainly under no Government but his own He is bound to do no injury 't is true but this does not hinder his being independent of Society For his Obligation to Justice results from the Law of Nature which binds him to abstain from Fraud and Violence whether it 's enforced by any Municipal Constitution or not If it 's Objected That this liberty of Resistance is not to be allowed but in Cases of extream Necessity when the Government is in danger of being wounded in its Vitals and the Fundamental Laws are struck at To this I Answer That since the People must be Judges of the Exegencies of State this restraining of Resistance to Cases of Necessity is no Security to the Common Welfare For by this Principle whenever a Man either through Mistake or Design believes or pretends to believe that the Fundamental Laws are broken he has a Warrant to take up Arms and form a Party to dispossess his Governor and if he can discharge himself of his Allegiance when he pleases he is actually free because his Will is in his own Power Farther Except the People are barred from Uniting their Forces against their Governors there can be no determination of Civil Controversies For in regard most People are apt to say they are wronged as often as they lose a Tryal if they have the liberty of Appealing from the Bench to the Neighbourhood and may raise all their Friends and Dependents to oppose the Execution of the Judges Sentence then Right must be resolved into Force and Justice will be all Sword without any Ballance Now that the Doctrine of Resistance gives this dangerous Allowance is plain For though our Author will not permit us the freedom of raising a Civil War upon the account of Male Administration in the Execution of the Laws yet he has not given us any assurance that other Men will be of his mind For may they not object that the prospect of having Justice observed was the principal reason of combining in Society For all Laws how Fundamental soever are designed only as means for the distinction and security of Property for the punishing of violence and circumvention and therefore they ought not to be valued above the End. For if the Prince has an unlimitted Priviledge of corrupting Judges suborning Witness and forcing the Execution of unjust Sentences all other Provisions for Liberty are to little purpose If we are to submit to all this hardship because it falls within the compass of Male Administration What do our Fundamental Laws signify When at this rate may some Men say We can neither have Life Liberty nor Estate secured to us So that if Resistance was allowable in any