which if I mistake not New England and Pensilvania are undeniable Instances In that Independancy which sufficiently strikes at Episcopacy and all the Ceremonies of Prelatical worship obtains as the legal Form of Government Discipline and Worship in the first and Quakerism which is a collection and system of very dangerous errors both in Doctrin Worship and Discipline is the Christianity that prevails and is countenanced in the latter Having now fully represented the whole that I Judge either needful or convenient to be said not only for the Justification of the Scots with respect to their present Undertaking and the Vindicating them therein from whatsoever with any shadow of reason can be excepted against it but towards the clearing and demonstrating how subservient their being Countenanced Protected and Assisted in it will be to the Interest of England and the Dominions thereunto belonging as well as to Scotland all that doth further remain to be added ere I put an end to this discourse is to acquit my self of a promise made in one of the foregoing sheets Namely that were I inclinable to recriminate it were easy to fasten some of the worst of those imputations upon the Spaniards whereof themselves have been so hasty to accuse the Scots And that as the ways of Force which they have run into do not correspond with the Alliances between the Crowns of Great Britain and of Spain So that thro' having betaken themselves to those methods they have altogether acquited and absolv'd his Majesty from having that amicable and friendly regard to the Memorial presented unto him in the name and by the Authority of the King of Spain that had they persevered in the ways of mildness might have been expected from him It being unquestionable that upon their persevering in those measures his Majesty would have comply'd as far with their desires as either in Justice he should have found himself obliged or as his Royal care for the Interest of his Kingdom of Scotland or the trust reposed in him by that Nation for the discharge whereof he is sacredly and solemnly bound by Oath would have allowed Nor can it be a trespass against that profound respect which is payable to every Crowned head even by such as are the Subjects of other Princes to intimate in Terms of Deference and Modesty that the Spaniards thro' having betaken themselves to ways of Force and violence against the Scots and that not only posteriorly but antecedently to the presenting the Memorial they have transformed that into a Jest if not an Affront which might otherwise have been interpreted an Act of esteem and kindness for his Britannick Majesty For whereas the Memorial was not delivered unto the King until the 3d. of May 1699 they had above Seven weeks before that not only detained such of the Scots Prisoners who by Storm and stress of weather had been cast upon the Coast where they have their Colonies and Fortifications but they had likewise Invaded and assaulted the Scots within their own Territory and District with an armed and military Power By which the Actings of the Spanish Governours in America are not only wholly incongruous and inconsistent and altogether irreconcilable with the proceeding of his Catholick Majesty ' s Ambassadour at London but the Crown of Spain is become apparently guilty of the Infraction of the Alliances between his Majesty of Great Britain and that King For whereas it is provided by the Third Article of the Treaty 1667 and by the Fourteenth Article of the Treaty 1670 That if any Injury shall be done by either of the said Kings or by the Subjects of either of them against the Articles of those Alliances or against common Right there shall not therefore be given Letters of Reprisal Marque or Countermarque by any of the Confederates untill such time as Justice is followed in the ordinary course of Law and unless upon a denial or an unreasonable delaying of Justice Yet not only while the case is depending and notwithstanding the assurance given by his Britannick Majesty to the Catholick King That he will cause examine the Justice or Injustice of this Fact of the Scots and thereupon act towards the Crown of Spain according to the measures of Law and Equity and the tenour of his Alliances but even previously to their representation of that matter unto his Majesty the Spaniards have actually fallen upon the Scots in the ways above mention'd And whereas it is Concerted and Stipulated by the Tenth Article of the Treaty 1670 That if the Ships which do belong to either of these Kings or the Subjects of either of them shall by stress of weather or otherwise be forced into the Rivers Bays Ports c. belonging to the other in America that they shall be received kindly and treated with all Humanity and Friendship Yet nevertheless the Spaniards have in direct Violation of that Article apprehended and kept such of the Scots Prisoners as were forced a Shoar at Carthagena by the Violence of a Storm By which as they have plainly made themselves guilty of an Infraction of Alliances between the two Crowns so they are become the Aggressors in a War which neither his Majesty nor his Scots Subjects have given any Just cause for or provocation unto And as they have thereby rendred it Lawful for the King to oppose Force against Force it being received as a Theoreme of what is Just and Right by all Nations that Iniquitas partis adversae justa bella ingerit that the doing of wrong by one Party gives foundation of a righteous War on their side against whom it is committed and that of all Wars they are the Justest quae ulciscantur injurias which are undertaken for the avenging of Injuries so the Spaniards have made his Majesty's entring into War against them in case they persevere in that Method indispensably necessary unless he should at once both Sacrifice his own Glory and Honour and abandon his people for a prey to such as are causelessly their Enemies The great Duty of every supreme Ruler being to protect his subjects from receiving of Injuries or to revenge them when done And for this end it is that people becoming united into Societies chose and elected such and such to be their Soveraigns that they might as well defend as govern them and protect them against wrongs from others as well as take care for the administring of Justice among themselves Yea this every King oweth to his People as they are a part of himself pars Rectoris as Grotius expresseth it He and they making one Political Body whereof as he is the Head so they are the Limbs and Members And that the aggressed may at all times endeavour not only to defend themselves against but that they may also Lawfully attack the Aggressor while he continueth to pursue his Hostility seems one of the first dictates of the Law of Nature being a sentiment wherein all Mankind are agred Yea it is the only remedy
foot of Conquest acquired in and over the Empires of Mexico and Peru and such Countries and Provinces that were dependent upon Subject and Tributary unto those two Empires yet they cannot thereby have obtained and Jurisdiction Title or Claim of possession over in and to those regions districts and places of America which as they have never Subdued so they of those places were not nor at any time had been in Vassallage or Subjection to the Monarchs and Soveraign Rulers of either of those Empires I could very justly have laid down the Postulatum and proposition more at large and at the same time been able to justify it both by Reason and Authority and to have proved and made it good as well by Artificial as Inartificial Arguments namely that whatsoever Legal right the Spaniards may have acquired to those Lands and Territories in America of which they are possessed by the claim and upon the foot of prescription thro' their having Inhabited occupied and inherited them for above 200 years without interruption disseisure or dispossession yet they never obtained a Lawful and righteous Title unto or a Legal Jurisdiction over them upon the basis and foundation of having Conquered the Mexican and Peruvian Emperors and Empires in and by a Just War but that they rather subdued and destroyed those Monarchs and Possessed themselves of their Dominions by Fraud Violence and Usurpation Now Puffendorf tells us and that agreeably to the opinion of all Civilians that per solam vim injustam non posse alicui Solidum Jus quaeri cui exadversum obligatio conscientiam stringens respondeat nisi vitium acquisitionis purgatum fuerit per accidentem post novam causam quae per se jus parere idonea est No right is acquired or doth arise or accrue to any by the alone and single means of unjust Violence and Force nor do a People become obliged and bound in conscience to pay Fealty and Allegiance and to yield Obedience to such as have Unrighteously and without Cause or Provocation Overpowered and Master'd them unless and until something else doth interpose and intervene that may create and give a Title and right of Domination Rule and Authority unto the Former and beget ties of legal Subjection and Obedience in the latter For as Grotius affirms to the same purpose That Actus Imperij invasoris quos exercet nullam vim habere possunt ex ipsius Jure quod nullum est That no Invader meerly as such and under that reduplication hath a right of exacting Fealty and Obedience of the Subjects of those Princes whom they have without Justice violently and forcibly assaulted That Quicquid Jure possidetur injuria aufertur What any rightfully possesseth he cannot save injuriously be disseised of is engraven upon the minds of all men as a part of the Legislation of the Divine Creator conveyed unto us with our Natures Nor can it be denied by any who do believe that there are such things as Right and Wrong among men and that they are under Laws which enjoyn what is Just and prohibit what is unjust but that the Wars which the Spaniards made upon the Emperors of Mexico and Peru and upon such Supreme Rulers and Governours of those other American Territories and Countries whereof they are become possessed were the most groundless unrighteous and unjust as well as the most bloody inhumane and barbarous that ever were either begun or carried on in any part of the World Seeing that tho' those Potentates Rulers and their People and Subjects were not Christians and for any thing that we do know were never provided of means nor furnished with advantages of being such yet they were as Lawful Kings Princes and Governours of their several and respective Dominions Territories and Districts in America and as Legal Proprietors of their Demesns and Possessions there as any European Prince or People whatsoever are in reference either unto the Authority and Jurisdiction which they have and do exercise in this part of the Terrestrial Globe or to the Lands and Goods where they do here inhabit and which they do enjoy and possess For Infidels being rational Creatures as well as other men are they are thereupon Sociable as well as they and consequently capable of entring into Societies and agreeing upon Laws for the Government of them and indeed to have Governours and to be Governed are equally comon to all sorts of men whether they Worship God or Idols being things that have their foundation in the light of Nature and not in Revelation And therefore Civil Dominion and Property being no ways founded in Grace or in the Orthodoxy of Faith but in Principles of Nature which guide men to provide for their own safety it is as much a violation of the Laws of God and of Nations to Invade the Countries of those Soveraigns and to deprive those Potentates of their Dominions without a previous and antecedent just reason and cause and it is as heinous an offence against the Laws both of Nature and Revelation to rob and plunder their People of what they had and enjoyed as it is for any one King and people in this Christian part of the World to do the like against and upon any other in this Hemisphere and who are of the same belief of the Gospel that they who Invade them are Nor have there hitherto been nor hereafter can any reasons be produc'd for legitimating and justifying the War of the Spaniards upon and against the natural Princes and the Natives of the West-Indies but which do with greater evidence proclaim and more singularly aggravate and enhance the guilt of it For to alledge that they were Idolaters and that therefore it was lawful to make War upon and to destroy and extirpate them is directly repugnant to all the Principles of Humanity the Maxims of Evangelical Meekness and the Methods establish'd by our Lord JESUS Christ for the Propagation of the Christian Faith as well as to all the Laws of Nature Revelation and Nations And as the time once was when all the Nations even of Europe Asia and Africk save the single and lâ—ttle People of the Jews were gross and open Idolaters so I do not believe that any are so far void of good Sense and of humane Sentiments as to think that the Jews had they been powerful enough to have attempted it stood warranted and authorized to have depopulated the Earth thro' destroying the Inhabitants of it And considering how the same Character of being Idolaters is by most of those of all Countries that are stiled Reformed fasten'd upon the Spaniards themselves because of divers Religious Actions in their Pontifician Worship it is not therefore to consult well for their own safety to invest those who do both believe and call them so with a right of Slaughtering and Murdering them upon that account And whereas it may possibly be pretended that the Spaniards had just cause administer'd unto them of making War
upon the Indians even almost to the extripating of them in that the Potentates and People of America would not admit them to Trade and reside peaceably among them It is as irrational and barbarous an Allegation as the former and is withal uncontroulably false with respect to matter of Fact which the other was not For abstracting from the question whether one People may not lawfully exclude and debar another from Trafficking with them and settling in their Country which why it may not be done in other Cases besides that of open Hostility I will not at this time take upon me to decide but that which I do affirm is That the Spaniards had no provocation of that kind given them for their making War upon the Natives It being declared and recorded by their own Historians and Writers that the Indians receiv'd them chearfully and treated them amicably and entertain'd them according to all the rules of Hospitality and Friendship yea both wellcom'd and esteem'd them rather as Gods than as Men until the Spaniards by their Barbarities perpetrated upon the Natives provoked them to seek and endeavour how to preserve and defend themselves from their brutal and hellish Rage So that tho' there be not the least shadow of truth in that pretence for the Spaniards having made War for Forty Years successively used all the Arts of Fraud Treachery and Violence for destroying and exterminating them which they so far effected as to Murder above Forty Millions of Men Women and Children to the laying waste some of the largest and finest Countries in the World and the rendring them in a manner destitute of Inhabitants yet the folly and impertinence of those who produce this as a reason and in justification of the War that was made upon the Indians are too obvious and remarkable to be overlook'd and silently omitted Seeing by the same reason and upon the same motive that they seek and endeavour to have the Spaniards either excused or justified in what they did against the Natives of America an European Nation that hath Strength and Power enough to fall upon the Spaniards in their West-India Provinces and is able to drive them thence becomes warranted and authorized to do it in that it is their avowed principle and practice to permit none to Plant and Trade there besides themselves So that it being apparent from the whole that hath been said under this Head that the War which the Spaniards made against the Rulers and Inhabitants of the West-Indies who were the Ancient Natives was upon all accounts most unrighteous and unjust it doth from thence unanswerably follow That no Title in those Dominions can arise and accrue unto them from their having been Victors and Conquerors in that War It being impossible that what is lawful and just should be the natural proper and immediate effect of what is in it self Wicked Abominable and Villainous And therefore such of the Spanish Nation as have been wise and honest they do renounce all claim of Right in the Crown of Spain to a Soveraignity and Jurisdiction over those Countries and the having a legal property in them on the Foot and Foundation of Conquest and are willing to place and settle it on the bottom of their own Occupation and Possession and quiet acquiescence of the Natives And indeed when Columbus had first discover'd the West-Indies and was about to establish Colonies in those Provinces and being at his second Voyage to Hispaniola advised by some of his own People and particularly by one Father Boyle to sieze upon Guacanagari that was an Indian King and stood accused for having Murder'd some Castilians whom Columbus had left there upon his first Voyage thither he not only refus'd to do it but declar'd that he came not into those Countries upon a Design of using Force nor in order to make a Conquest but in a peaceable and gentle way and to settle with the consent of the Natives In brief tho' neither any crimes against God wherewith the Indians were chargeable nor any undue and inhumane carriages towards the Spaniards at their first Landing in America whereof some have had both the Impudence and Indiscretion to accuse them were either just motives according to the Morals of Heathens or Christians or allowable by the Laws of Nations as Lawful causes for the Spaniards making War upon that People yet both the occasions of it on the part of the Natives and the real Inducements unto it on the side of the Spaniards are too obvious and apparent to escape the Observation and Notice of any person that is conversant in History Namely that the Simplicity Meekness Patience and Unacquaintedness with Arms and Martial Discipline and their being ill provided of Weapons either Offensive or Defensive together with their abounding with Wealth and their Countries being stored with Gold and Silver Mines were the true occasions of that War on the side of the Indians and an insatiable Avarice a Brutal Insolence and unquenchable thirst after Blood were the real causes of it on the part of the Spaniards who under all their pretences of converting those Infidels to the Christian Faith and Worship intended principally if not only the destroying and extirpating of them and converting their Countries and their Treasures to their own use Whereunto may be further added under this head that the Murther of the Emperours of Mexico and Peru and the destroying all such as were of the Royal Lines of those two great Monarchical Families which was perpetrated against all the measures and obligations of Gratitude Truth Honour Equity and Justice and with all the Treachery and Inhumanity imaginable gave no Legal Jurisdiction to the Spaniards over such as had been Subjects or Vassals to those Soveraigns in that the Spaniards did not set themselves up and lay claim to an Authority in order to Govern the Mexicans and Peruvians to their Advantage and Benefit but that they might extirpate and exterminate them And Governments being at first instituted for the safety of a People and not for their ruine Kings being as Aristotle saith ordained for the good of Kingdoms and not Kingdoms for the Lust and Pleasure of Kings to be Tyrannized over as they will such can never acquire any right to Rule and Govern a Country whose design work and endeavour were to depopulate it And if on the supposition that it were possible for one that is a Legitimate Soveraign and Monarch to entertain a purpose of making an Universal destruction of his People instead of Protecting them which I do really think and believe no Prince whatsoever is capable of who is not fitter for Bedlam than a Throne and who needeth not rather to be Bound in Chains than to be accounted fit to sway a Scepter as being more Mad and Distracted than any that are kept at Hogsden it were Lawful for his very Subjects without the Violation of their Allegiance to restrain and resist him Surely then it ought much more to
they may have been possessed of them and if a peaceable and undisturb'd Occupation for an hundred or two hundred Years be not confessed sufficient time to found Prescription upon the Right of many Princes as well as of Common Men would be very questionable to what they call their Inheritances and Matter and Cause would thereby be administred of Bloody Wars as well as of litigious and expensive Sutes in Courts of Law both between Rulers and between private Subjects in most places in the World But whereas upon this Concession which I have made it may possibly be said and alledged by some that thro' the Spaniards having a right of Soveraignity and Dominion in and over Mexico and Peru they must consequently be own'd to have a legal Title to all the Provinces Districts and Places that had been formerly and particularly at the Castilians landing in America were parts of Feudatory unto or any ways dependant upon those Empires It being a Maxim in the English as well as in all other Laws That the Possession of a part in a Person or Persons that have the Right gives unto them a just Claim of Possession to the whole Whereunto the Answers that may be given are obvious from what hath been offer'd and laid down in the foregoing Postulata and Premises namely first That the whole imported in that Maxim doth only refer unto and obtain in reference to such who had been and were the legal and rightful Proprietors of such and such Dominions and Territories or who had thro' a Conquest in a just War cut out and made a Title to themselves by their Swords whereas it signifieth nothing nor is of any validity to the giving a legal Claim and Title unto and over any parts of a Country further than as they are actually occupyed and possessed to those who neither had ancient Propriety in and over those Dominions nor had come to acquire any in way of Conquest by a just War Which being the plain and direct case of the Spaniards even in relation to the Empires of Mexico and Peru it may therefore be affirm'd and that consonantly both to all the Rules of Laws and the Measures of Equity and Justice and that from the Castilians having inhumanely savagely and treacherously Murder'd the Emperors of Mexico and Peru and the having destroy'd all those of each of those Imperial Lines as they could byfraud or violence get within the circle of their Power and their having set themselves to Slaughter Massacre and Exterminate the Natives as far as their might and strength excited and influenced by Malice Rage Avarice and insatiable thirst after Blood could extend and reach I say it may be affirm'd that from thence and thereupon no Right or Title of Propriety or Dominion did arise unto the Spaniards in and over those Empires further than they came quietly to inhabit and were submitted unto but that rather thereupon the Natives of those two Empires were at liberty to account these two great Monarchies to be entirely dissolv'd and might reckon that they themselves were in effect reduc'd back again to the State of Nature and that whatsoever Power and Authority had either by primitive Compacts and Agreements or by tacit Submissions been vested in those Monarchs and their Hereditary Successors was become wholly vacated and annulled not only as to them and their legal Heirs but to all such who should pretend to arise and set up in their room in the vertue of any Claim resulting from their having destroy'd and murder'd those Monarchs and that the Power and Jurisdiction of the ancient Emperors of Mexico and Peru being altogether extinguish'd there was thereby a Right as well as a Freedom restor'd unto and divolv'd upon the Natives of disposing themselves how to whom and after what manner they pleas'd so that they might choose what Governors and erect what Government they would in order to their being kept in peace and safety among themselves and be protected and defended from and against all such as should hostilely invade them So that whosoever of those Indians who had formerly been dependant upon and subject unto the Empires of Mexico and Peru did for the reasons I have mention'd withdraw themselves from being for the future any ways under those Empires or any parts or branches of them and became united and confederated into distinct separate and independant Communities erecting Governments and choosing Governors of their own As the Spaniards can lawfully pretend to no legal Claim of Right and Authority over them so it is not only free for those Indians to admit any European or other Nation to come and to settle and to plant among them but they may upon the motive and guidance of their own Interest as well invite as receive any sort of People to plant and reside among them that shall shew themselves willing and who may be able to assist those Natives against the Spaniards who make War upon and seek to oppress them For as Civilians do generally agree Si populus vel propriis viribus vel siociorum jugum hostile excusserit sine dubio libertatem statum antiquum recuperat Whensoever a People that hath been drove out of their Possessions do either by their own Power or by the aid and assistance of their Allies rescue themselves from the Yoke and Dominion of their Enemies they immediately thereupon do legally recover both their Liberty and Right to whatsoever they were disseized of and this is call'd Jus postliminium quod nascitur ex reditu in limen To which purpose Grotius says from Pomponius Expulsis hostibus ex agris quos ceperant dominia eorum ad priores dominos redeunt Vpon the expulsion of Enemies out of such Territories whereof they were by Invasion and Vsurpation become possessed the Propriety and Dominion of those Lands do return unto such who had been the first Lords and Owners of them Nor is any length of time allow'd by some of the best Civilians sufficient to give a Title so much as by Prescription unto such who by force and violence were gotten into the Occupation of Countries and Territories in case they whom they had subdued gave no signs of their submission to them nor any ways testify'd their receiving of them for their Rulers and Lords Nullum tempus says one sufficit ad acquirendum sumâ—um imperium aut partem ejus necessariam nolente primo possessore quod significatur etiam silentio quando loqui non audeat No length of time wherein an Vsurper possesseth can vest him in a rightful Jurisdiction and Dominion while he wants the consent in some manner intimated of those that were the first legal Inheritors and that their very silence is enough to shew their refusal of becoming Subjects when their circumstances are such that they dare not express their disclaiming his Soveragnity over them For in some cases it is enough that they murmur tho' they dare not express their hatred seeing that