the Father please to sell one or two of his Children whom he least loveth to provide Portions for the rest he may lawfully do it for any thing I see to the contrary So likewise immediately after he asserts the Superiority of all Princes above Laws because there were Kings long before there were any Laws And all the next Paragraph is wholy spent in proving the Unlimited Iurisdiction of Kings above Laws as it is described by Samuel when the Israelites desired a King So that it signifies little what Laws Princes make or what Priviledges they grant their Subjects since they may alter them or abrogate them when ever they please M. But pray take along with you what he says in the next Paragraph you quote where you may see these words It is â—here evidently shewed that the scope of Samuel was to teach the People a dutiful Obedience to their King even in those things which themselves did esteem Mischievous and Inconvenient For by telling them what a King would do he indeed instructs them what a Subject must suffer yet not so as that it is Right for Kings to do Injury but it is Right for them to go unpunished by the People if they do it So that in this point it is all one whether Samuel describe a King or a Tyrant for patient Obedience is due to both No Remedy in the Text against Tyrants but in crying and praying unto God in that day And that Sir R. F. is very far from justifying Kings in the unnecessary Breach of their Laws may farther appear by what he says Chap. 3. Par. 6. of this Treatise where pray see this passage Now albeit Kings who make the Laws be as King James teacheth us above the Laws yet will they Rule their Subjects by the Law and a King Governing in a Settled Kingdom leaves to be a King and degenerateth into a Tyrant so soon as he leaves to Rule according to his Laws yet where he sees the Laws rigorous or doubtful be may mitigate and interpret them So that you see here he leaves the King no Power or Prerogative above the Laws but what shall be directed and employed for the general Good of the Kingdom F. But pray Sir read on a little farther and see if he doth not again undo all that he hath before so speciously laid down and if you will not read it I will General Laws made in Parliament may upon known respects to the King by his Authority be mitigated or suspended upon Causes only known to him And altho' a King do frame all his Action to be according to the Laws yet he is not bound thereto but at his good Will and for good Example Or so far forth as the General Law of the Safety of the Common-Weal doth naturally bind him for in such sort only Positively Laws may be said to bind the King not by being Positive but as they are naturally the best or only means for the preservation of the Common-Wealth So that if the King have this Prerogative of mitigating interpreting and suspending all Laws in Cases only known to himself and that he is not bound to the Laws but at his own good will and for good example I desire to know what greater Prerogative a King can desire than to suspend the Execution of any Law as often as he shall think fit For tho' I grant the Suspension of a Law differs from the Abrogation of it because the former only takes away the force of it in this or that particular case whereas the latter wholy annuls the Law yet if this Suspension be general and in every case where the Law is to take effect it amounts to the same thing with an Abrogation of it as may be plainly seen in the late King 's Dispersing Power For tho' it be true he pretended to no more than to dispense with this or that Person who should undertake a publick Employment either Military or Civil without taking the Oaths and Tâ—st yet since he granted this Dispensation generally to all Papists and others that would transgress this law it amounted to the same thing during his pleasure as an Absolute Abrogation of it And therefore I do very much wonder why divers who are very zealous for the Church of England and the King's Prerogative should be so angry with him for erecting that Power which not only this Author but all others of his Principles have placed in him And if the King may suspend this and all other Laws upon Causes only known to him I do not see how he differs from being as Absolute and Arbitrary a Monarch as the Great Turk himself and may when he pleases notwithstanding all Laws to the contrary take away Men's Lives without any due Forms of Law and raise Taxes without Consent of Parliament M. But pray read on a little farther and you will find that he very much restrains this Absolute Power in these words By this mean are all Kings even Tyrants and Conquerors bound to preserve the Laws Goods Liberties and Lives of all their Subjects not by any Municipal Law of the Land but by the Natural Law of a Father which binds them to ratifie the Acts of their Fore-fathers and Predecessors in things necessary for the publick good of their Subjects F. Were I a Monarch limited by Laws I would desire no greater a Power over them than this you have here brought out of this Author For he says Positive Laws do not bind the King but as they are the bâ—st or only means for the preservation of the Common Wealth In the next place you see that all Kings are bound to preserve the Lives and Estates of their Subjects not by any Municipal Law of the Land but by the Natural Law of a Father which binds them to ratifie the Acts of their Predecessors in things necessary for the publick good of their Subjects Now this Paternal Power is large enough of all Conscience to discharge Princes from any Obligation to the Laws farther than they please For it before appears that the Father of a Family governs by no other Law than by his own Will and not by the Laws and Wills of his Sons or Servants therefore if the Power of the King be wholy Paternal he may alter this Will of his as often as he please Nor can his Subjects who are all one with Sons and Servants have any reason to find fault with it For he says There is no Nation that allows Children any Remedy for being unjustly Governed And tho' it be true that he restrains this Prerogative both in Fathers and Kings to the publick good of their Children and Subjects yet as long as he is left the sole and uncontroulable Judge of what is for the publick good all these fine Pretences will signifie nothing For he is bound to observe or ratifie no Laws or Acts of his Predecessors but what he is satisfied tend to this End So that if he thinks fit to Judge that Magna
Spirits of Fortitude and the Greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which we render Boldness of Confidence and which did often transport them to say those things to persecuting Kings or their Governours which had been insufferable to any man else on another occasion and this was not only in words but Actions too Thus when the Emperours Numerianus or Deâ—â—us for my Author doth not know which it was would have entred into the Cathedral Church of Antioch in time of Divine Service Babylus the Bishop standing in the Church-Porch shut the Door against him telling him that He would not suffer him who was a Wolf to enter into the Sheep fold of Christ. And we also read that Valentinian who was afterwards Emperour being then an Officer under Iulian and wanting upon him to the Door of a Heathen Temple gave the Priest a Box on the Ear because he offered to sprinkle him being a Christian with his Prophane Holy Water Yet I confess Theodoret commends the Action and says they after chose that Valentinian Emperour him who had before struck the Priest And therefore I wonder to what purpose you quote such Passages â—ut of Antient Writers and the Actions of Primitive Christians which if you are a Man of that Loyalty or good Breeding as I hope you are you will not your self approve of F. I do not tell you I quote them for our Imitation but only to let you see that the Actions of those you call Primitive Christians and Fathers are not by your own Confession to be the only Pattern for us to follow so that indeed their Practices can signifie nothing to us unless the Principle they acted by were suitable to the Laws of God and right Reason unless you will have no Precedents to be good but what shall suite with your Humour and those Principles you have already imbibed and if Babylus the Martyr might without any sin shut the Emperour out of the Church by Force and that Valentinian was commended for striking the Emperours Priest on the Face I think here are by your own Confession two sufficient Primitive Examples of Resistance both of the Emperour's Person as also of those commissioned by him as certainly this Priest was or else he could have had no Right to have exercised his Idolatrous Worship after the Temples had been shut up under Constantine and Constantius But I now desire your Patience to let you see that not long after these times the Christians as well Souldiers as others were not so through paced in these Doctrines of Passive Obedience and Non-resistance as you would make them for it was by the Rebellion of the Christian Legions in Britain that Maximus took the boldness to Rebel against the Emperour Gratian and making himself Emperour marched into Gaul against him where the poor Prince being also deserted by his Christian Army and forced to fly away with a few followers was not long after murdered by Andragathius after which this Maximus had so good Success that he possessed himself not only of Britain but Spain Gaul and part of Germany and was also acknowledged for Emperour by all the Subjects in those Provinces as well Clergy as Laity tho' the Emperour Valentinian the Son of Gratian was then alive All the Bishops making their Applications to him and desiring him to call a Council in Gaul to suppress the Heresie of Priscillian which he did in Complyance with their Desires wherein they condemned him and his Followers of Heresie who afterwards at the Instance of Ithacius and some other Bishops by this Usurping Emperour were condemned with diveâ—s other of his Followers to suffer Death being the first that ever suffered that Punishment for Heresie This Maximus after five years Reign was overcome and killed in Battle By the Emperour Theodosius who restored that part of the Empire to Valentinian the II. And farther to let you see that the common People of these Primitive Times tho' they were not able to make Emperours so well as the Army yet they were not so streight-laced as not to Resist the Emperours Orders whenever they thought they entrenched upon their Religion or that they went about to persecute them for it I can give you a great many Examples out of Ecclesiastical History of which I will only here set down some few The first is out of Socrates Eccl Hist. Book 2 d. when the Emperour Constantius at the Instigation of Macedonius the Arian Bishop had perswaded him to send some Bands of Soldiers into Paphlagonis to terrifie the People â—punc and make them turn Arrians The Inhabitants of Mantinium enflamed with a Zeal for the Orthodox Religion marched against the Soldiers with a good Courage and having provided themselves with the best Arms they could they gave them Battle in which few or none of the Emperour's Soldiers escaped And tho' I confess the Historians say these People were most of them Novatians yet this Action ought not to be condemned only for that Cause since they were rather lookt upon as Schismaticks than Hereticks and were in all things else except that one point about reconciling the lapsed very Orthodox but in all other things were more strict and scrupulous than the Catholicks themselves So likewise when the Orthodox at Constantinople had chosen Paul for their Bishop but the Emperour resolving to make Macedonius Bishop in spite of their Teeth and had sent Philip the President to fix Macedonius in that See as he was about to give him Possession of the Church tho' they were guarded all along with Soldiers Yet when they came near the Door the People made that Resistance that they could not get in till several thousands of them were killed And some years after when the Emperour Theodosius the II. had banished St. Chrysostome about the Year 404. The People flocked together about the Palace so that the Emperour to pacifie them was forced to recall him from his Banishmen And when St. Ambrosâ— was banished by Valentinian at the Instigation of his Mother Iustina the People did Resist such as came to carry him away and such was their Zâ—al for the Truth and Love to their Injured Bishop that they chose rather to lose their Lives than suffer their Pastor to be taken away by the Soldiers that were sent to drag him out of the Church I could give you more Instances of this kind from the e Primitive Times but these may be sufficiâ—nt to shew you of how little account the Doctrine of Non-Resistance was in those times aftâ—â— Christianity was once settled and that the People supposed they 〈◊〉 the Law on their side Neither do I produce them as fit to be imitated 〈◊〉 like Cases but only to let you see that the Example of those times you call Primitive are no Sufficient Argument of what was lawful or unlawful to be done M. Since you your self do allow All or however most of these Actions to be unlawful I think you might very well have spared
make so light of this Testamentary Doâ—â—tion of Edward the Confessor which the greatest part of the Writers nearest that time do suppose to have been really made on the behalf of Duke William and that notwithstanding this bequest Harold unjustly and contrary to his own Oath did by force set the Crown upon his own Head without any precedent Election of the Clergy Nobility and People as was required at that time since it was impossible for them to meet in so short a time for King Edward dying on the Eve of Epiphany was buried on Twelfth day and on the same day Harold took upon himself the Crown by the consent of some of the Bishops and Nobility of his Faction then at London so that he was certainly no better than an Usurper and therefore by the Conquest of Harold and his party your Conqueror could acquire no right upon the free People of England since they never gave their consents to place Harold on the Throne and consequently K. William could have no just cause of making a conquest upon the whole Nation since neither did he ever in all his Reign as I can find call a common Council of the Kingdom to recognize or confirm his Title and tho' it is true Harold proving a Valiant and Popular Prince got the good will of the common People by divers Acts of Grace which he had lost by his violent taking the Crown while Edgar Atheling the only remaining Male Heir of the Saxon Race was in being and found very many who were willing to fight for him not only against the King of Norway who had a little before Invaded the Kingdom but also against Duke William yet all those in his Army could amount to nothing near the whole Kingdom who never contributed to the War by any publick Vote or Tax and therefore did not countenance it by giving Money or raising of Men as you suppose so that D. William could not pretend a right of making War against any body but only Harold and his Accomplices but as for the Testamentary Donation of Edward the Confessor tho' you make so light of it yet Ingulph says expresly that Edward the Confessor some time before his Death sent Robert Archbishop of Canterbury as his Ambassador to D. William to let him know That he had designed him his Successor not only by Right of Kindred but by the merit of his Vertue and that after this Harold coming into Normandy promised upon Oath to assist him in it and Will. Malmesbury says also that Edward the Father of Edgar Atheling dying almost as soon as he came into England K. Edward his Cozen being dead gave the Succession of this Kingdom to William Duke of Normandy with whom also agree Florence of Worcester and William of Poiâ—tou and all the rest of the Historians of that Age as well English as Normans nor do I know any of them except Simeon of Durham and Roger Hoveden who make Harold to have been appointed Successor by K. Edward or to have been so much as solemnly Crowned by the Archbishop of York But I confess your main objection is still to be answered viz. what precedent Right Duke Wâ—lliam could have to the Crown of England by this Testament of King Edward since it was then either an Elective or else an Hereditary Kingdom and so this Donation could confer no right on this Duke in Prejudice of the Peoples right to Elect or else of the next Heir to succeed In answer to which I must tell you that which perhaps you may have never considered that the Crown was then neither properly Elective nor Successive but a mixture of both M. That seems a kind of a Paradox and what I never heard before pray explain your self for I do not understand how it could be F. Why then I will tell you the Crown of England in those times was very like what the Crowns of Denmark and Sweden were not long since and as the Empire is at this day in which tho' the Estates or Diet might chuse whom they pleased for King or Emperor yet they still kept to the same Family or Line as long as there were any Males left of iâ— fit to succeed which custom often gave the King in Being a power which by degrees came to be looked upon as a kind of Right either upon his Death Bed or else at any time before to nominate one of his Sons or near Kinsmen to be his Successors by his last Will or Testament especially if he had no Sons of his own as happen'd in the case of King Edward the Confessor now this nomination tho' it did not alone confer a right to the Crown yet it made the person so named the fairest candidate for it and was such a recommendation to the Estateâ— or great Council of the Kingdom as they never passed by or denied as I can ever find by the best inquiry I have made and for proof of this I shall appeal to the Testament of K. Alfred as you will find it Printed from an Ancient Manuscript in the second Appendix to his Life in Latine publisht at Oxford Which begins thus Ego Alfredus Divino munere labore ac Studio Athelredi Archiepiscopi nec non totius Westsaxoniae Nobilitatis consensu pariter assensu occidentalium Saxonum Rex quos in Testimonium meae ultimae voluntatis complementi ut sint advocati in disponendis pro salute animae meae regali electione confirmo tam de haereditate quam Deus at Principes cum senioribus Populi misericorditer ac benigne dederunt quam de haereditate quam Pater meus Aethelwulfus Rex nobis tribus fratribus delegavit viz. Aethelbaldo Aethelredo mihi ita quod qui nostrum diutius foret superstes ille totius Regni dominio congauderet c. From whence you may collect first that tho' this King in the very beginning of his Testament ascribes his obtaining the Crown not to any Hereditary Right but the consent and assent of the Nobility of West-Saxony yet he also here mentions the entail of the Crown by his Fathers Will upon his two Elder Brothers and himself successively before any of his Elder Brother's Sons who were living at the time of the making of this Testament of K. Alfred's as appears by the Will it self in which they are expresly mentioned now how could this be that he was King as well by the consent or election of the West-Saxon Nobility as by his Father's Will unless both these had been required to make him so Also Will. of Malmesbury tells us of K. Athelstan the Grandson of K. Alfred that Iussu Patris in Testamento Aethelstanus in Regem est acclamatus but in the beginning of this chapter he also tells us that Aethelstanus electus apud Regiam aulam quae vocatur Kingston Coronatus est quamvis quidem Alfredus cum factiosis suis obviare tentasset upon that pretence that Athelstan was a Bastard so that you may
him not only Gratitude and Respect as a Parent but also Obedience in all indifferent things Yet I deny that this Power or Supâ—â—iority of Adam over his Wife and Children was at all a Despotical or Civil Power but meerly Oeconomical for the Good and Convenience of Adam and the well ordering and preservation of his Family which you will easily grant if you please to consider what are the Essential Differences of Civil Government from Oeconomical Now the Essential Properties of Civil Government consist in preserving and defending the Subjects both in War and Peace from Forreign Enemies and Intestine Injurieâ— and Invasions of Mens Persons or Properties and in revenging and punishing all such Transgressions by Death or other Punishments and consequently in making Laws concerning Property and for restraining all Robberies Murders and the like Now in the state of Innocency there could be no need of any of these Essential Functions of Civil Power for your self must grant that Man was then not apt to Sin and immortal so that all Laws about Peach or War Punishments of Offences publick Judgments concerning Meum Tuum and all Injuries were absolutely needless and had never been in Nature if Adam had not sinned and then how you can call this Authority or Superiority which I grant Adam had over his Wife and Children Civil Power I can by no means understand But I do utterly deny that even after the Fall Adam was a Monarch or Sole and Absolute Lord over the whole Earth and all Creatures therein contained and desire you to give me such plain proofs of it either from Reason or Scripture that I need no more doubt of it than your self M. I shall first of all give you an Argument drawn from the Reason of the thing and in the next place the Authority of Scripture for my Opinion and first I think it is evident that every Man that is Born is so â—at from being Free that by his very Birth he becomes a Subject of him that begets him and even Grotiâ—â— hâ—mself acknowledges that Generatione â—us acquiritur in liberos And indeed the Act of Begetting being that which makes a Man a Father his Right of a Father over his Children can Naturally arise from nothing else and the same Author in another plâ—ce hath these words upon the Fourth Commandment Parentum nomine qui naturales luns Magistraus etiam alios Rectores par est iutelligi quorum authoritas Sociâ—tatem humanam continet And if Parents be natural Magistrates Children must needs he Born Natural Subjects So that not only Adam but the succeeding Patriarchs had by Right of Fatherhood Regal Authority over their Children as may 〈◊〉 by divers Testimonies out of Scrâ—pture and therefore at is very reasonable that all Fathers should have a Power over the Lives of their Children since it is to them that they owe their Life Being and Education and I think that even the Power which God himself exerciseth over Mankind is by Right of Fatherhood F. Before you come to Scripture give me leave in the first place to examine your first Argument which you deduced from the Law of Nature or Reason For I doubt if you please better to consider of it you will and that so light and Transitory an Action as that of Generation cannoâ— give any Man an absolute Property and Dominion over the Person and â—â—fe of those whom he Begets since sew Men do principally intend the giving of a Being to another so much as they do their own pleasure in that Action nor do we owe our Lives properly speaking to our Parents but to God who is the true and original Cause of our Being though it is true he makes use of our Parents as Physical though not as Moral Means or Instruments for that end since it doth not lye in their power to hinder their Generating of Children if they perform the Acts necessary thereunto so that both the antecedent and the consequent are altogether false viz. That Parents give their Children Life and Being and that therefore they have and absolute power over their Lives and Persons which if it were true would give the Mother an equal Title to the Lives of the Children as the Father seeing they owe their Lives as much to the one as the other Which power in the Mother I am sure you will not admit of But as for what you say concerning the power of Fathers arising from Education though I confess that is a much better Title than the other Yet doth it not follow that because by reason of my Parents care of me before I was able to help my self I owe my preservation and well being to them that therefore they are to be perpetual and absolule Lords over my Person and Life Since by thus breeding me up they only perform'd that Duty and Trust which God had laid upon them for the good and preservation of Manking and which they could not without committing a Sin either refuse or decline and therefore their Authority or Power over my Person being only for my well-being can extend no farther tan whilst I am not of years of discretion to understand the true means of my own good and preservation And though I grant that I am bound in gratitude to return this Care and Kindness by all Acts of Duty and Piety towards them as long I live yet doth it not therefore follow thar they are Masters of my Life and of all that I have since this were to take away more than they themselves ever gave and though I should grant you that even the Power which God himself exerciseth over Mankind is by Right of Fatherhood yet this Fatherhood is such as utterly excludes all pretence of Title in Earthly Parents for he is our King because he is indeed maker of us all which no Natural Parents can pretend to be of their Children but if you please more closely to consider your own Argument you will find that he will quite destroy your Hypothesis For if all Fathers have an absolute power over their Children by Generations then Adam could only have power over his own Children which he begat and none at all over his Grand-Children since their Fathers by this Argument of Generation ought to have had the same power over their Children which Adam had over them for the same reason So that this Monarchical Power of Adam as a Father could extend no farther than one Generation M. I shall not further urge this Argument of Generation since I see you are not satisfied with it but this much I think I can clearly prove from Scripture that Adam was Lord over the Persons and Lives of his Wife and Children by vertue of that command which God gave Eve Gen. 3. v. 16. Unto the Woman he said I will greatly mutilply thy sorrow and thy Conception In sorrow thou shalt bring forth Children and thy desire shall be to thy Husband and he shall rule over thee From which words it
happen sometimes to abuse yet I suppose no person living hath any right in that state to resist him in the Execution of it much less to call him to an account or punish him for the Male-administration of his Power And you have granted that the Husband in the state of Nature hath a power of life and death over his Wife if she murthers her Children or commits any other abominable sin against Nature and that then she may be justly cut off from the Family and punish'd as an Enemy to Mankind and so certainly may his Children too But what need I say any more of this Subject when you have not as yet answered my former Arguments concerning the absoluteness and perpetuiry of this Conjugal Subjection and that which will likewise follow from it the constant service and subjection of Wives and Children to their Fathers in the state of Nature Therefore pray Sir let us return again to that Head and let me hear what you have to object against those Reasons I have brought for it F. I beg your pardon Sir if I have not kept so close to the Point as I might have done but you may thank your self for it who brought me off from what I was going farther to say on that Head by your discourse of Passive Obedience and Non-Resistance and I know not what strange unintelligible Power of Life and Death conferred by God on Adam as a Husband and a Father But first give me leave farther to prove that this subjection of the Wife is neither absolute nor irrevocable For proof of which I shall lay down these Principles 1. That the Wife in the State of Nature when she submits her self to the power of her Husband does it to live as happily as she did before oâ— rather to enjoy more of the comforts of life than in a single State 2. That therefore she did not renounce either her own happiness or Self-preservation 3. Neither did she make him the sole and absolute Judg of the means that may conduce to these ends for if this were so let him use her never so cruelly or severely she could have no cause to censure him or complain in the least against him 4. If she have not so absolutely given up her Will to his she is still Judge when she is well used by him or else so cruelly that it is no longer to be endured And therefore if such a Husband will not allow his Wife sufficient Food and Raiment and other necessaries or that he uses her cruelly by beating or other punishments or hath endeavoured to take away her Life in all these cases in the State of Nature and where there is no Superior Power to complain or appeal to she may certainly quit him and I think she is not bound to return to co-habit with him again until she is satisfied he is sorry for his former cruel Treatment of her and is resolved to make amends for the future But whether this Repentance be real or not she only can be Judge since she can only Judge of her own happiness and the means of her preservation And the end of Matrimony being for their mutual happiness and help to each other if he have broke his part of the Compact she is then so far discharged from hers and consequently in the meer state of Nature which is that we are now talking of the Vinculum Matrimonii as you Civilians term it will be likewise dissolved So likewise such a Husband for no just cause or crime in the Wife but only to be rid of her should endeavour to take away her life as suppose to strangle her in her sleep or the like no doubt but she may notwithstanding your Conjugal Subjection resist him by force and save her life until she can call in her Children or Family for her rescue and assistance who sure may also notwithstanding this absolute Daspotick Power you place in their Father or Master rescure her from his rage and malice whether he will or not Nay they are bound to do it unless they will be Accessaries to her Murther M. These are doubtful Cases at best and do very seldom happen and a Husband can scarce ever be supposed to be so wicked as to hate and destroy his own Flesh and therefore we need not make Laws on purpose for Cases that so rarely happen F. Rarely happen I see you are not very conversant at the Old Bayly nor at our Countrey Assizes where if you please to come you may often hear of Cases of this Nature and I wonder you that are a Civilian and have so many Matrimonial Causes in your Spiritual Courts brought by Wives for Separation propter Saevitiam c. Should doubt whether Husbands do often use their Wives so ill that it is not to be endured But if the Wife have these Privileges pray tell me why the Children shall not have the same according to your own Maxime of partus Sequitur Ventrem since the Subjection of Children must be according to your own Principles of the same natere with that of the Mother and then pray what becomes of this absolute and perpetual Subjection you talk of M. Yet I hope you will not affirm but that Children are under higher obligations of Duty and Obedience to their Father than a Wife is to her Husband with whom perhaps she may in some cases be upon equal terms but Children can never be so in respect of their Father to whom they are always inferior and ought to be absolutely Subject in the state of Nature that is before Civil Laws have restrained Paternal Power F. I thank you Sir for bringing me so naturally to the other Head I was coming to and I agree with you in your other Maxim of Quicquid ex me â—xore mea nascitur in potestate mea est yet not in your sense For iâ— I should grant that the Father's Power over the Child commences from his Power over the Mother by her becoming his Wife and submitting her self and consequently all the issue that should be begotten of her to her Husband's Power yet as I have proved already in case of the Wife so I think I may affirm the same in that of the Children That they are not deliver'd by God so absolutely to the Father's Will or disposal as that they have no Right when they attain to years of Discretion to seek their own happiness and preservation in another place in case the Father uses them as Slaves or else goes about to take away their Lives without any just cause since when Children are at those years I think they are by the Laws of Nature sufficient Judges of their own happiness or misery that is whether they are well or ill used and whether their Lives are in danger or not by their Father's Cruelty For tho' I grant that Children considered as such are always inferior to their Parents yet I must likewise affirm that in another respect as they are men and
also for their own advantage and in hopes of having a share in what Goods of Estates they may leave behind them when they dye But if when they come to years of discretion they can better their condition by marrying and leaving their Fathers Family their Parents are bound in conscience to let tehm go since it is their duty to better the condition of their Children and not to make it worse Always provided that such Children either take care of their Parents themselves or else hire others to do it for them in case they want their assistance by reason of their old age Poverty or Sickness but if children may not quit their Fathers Families thô they are never so hardly or severly dealt with the consequence will be that Fathers may keep their children as Slaves as long as they live thô it were a hundred years or else may sell them to others to be used worse if possible the absurdity of which assertions and how contrary to the common good of Mankind I might leave to any indifferent Person to judge of Therefore I think I may very well according to the learned Grotius divide the lives of children into three Periods of ages The first is the Period of Infancy or imperfect Judgment before the child comes to be able to exercise his reason The Second is the Period of perfect Judgment or discretior yet whilst the child continues still part of his Fathers Family The third is after he has left his Fathers and entered into another Family or sets up a Family himself In the First Period all the actions of children are under the absolute Government of their Parents For since they have not the use of reason nor are able to judge what is good or bad for themselves they could not grow up nor bâ— preserv'd unless their Parents judged for them what means best conduced to this end yet this power is still to be directed to the principal end viz. The good and preservation of the Child In the second Period when they are of Mature Judgment yet continue part of their Fathers Family they are still under their Fathers Command and ought to be obedient to it in all actions which tend to the good of their Fathers Family and concerns And in both these Ages I allow the Father has a Right to make his Children work as well â—â— enable them to get their own living as also to recompence himself for the pains and care he has taken and the charge he may have been at in their Education and also to correct them in case they refuse to work or obey his Commands But in other actions the Children have a Power of acting freely yet still with a respect of gratifying and pleasing their Parents to whom they are obliged for their being and Education Since without their care they could not have attain'd to that age But this duty being not by force of any absolute subjection but only of Piety Gratitude and Observance it does not make void any act thô done contrary to their duty The third and last Period is when the Son being of years of discretion either by marriage or otherwise is seperated from his Fathers Family In which Case he is in all actions free and at his own disposal thô still with respect to those duties of Piety and Observance which such a Son must always owe his Father the cause thereof being perpetual M. I must beg your pardon if I cannot come over to your opinion notwithstanding all you have said in this long discourse since I cannot conceive how in any Case Children can naturally have a power or moral faculty of doing what they will without their Parents leave since they are always bound to study to please them and thô by the Laws of some Nations Children when they attain to years of discretion have a power and Liberty in many actions yet this Liberty is granted them by positive and humane Laws only which are made by the Supream Fatherly Power of Princes who can regulate limite or assume the Authority of inferiour Fathers for the publick benefit of the Common-wealth So that naturally the Power of Parents over their Children never ceases by any seperations thô by the permission of the transcendant Fatherly power of the Supream Prince Children may be dispens'd with or priviledged in some cases from obedience to subordinate Parents F. And I must beg your pardon Sir if I cannot alter my opinion in this matter for all that you have now said since you can give me no better Reasons than what you did at first and thô you say you cannot conceive how Children can ever in any case have a power or moral faculty of doing what they will without their Parents leave yet they may have such power in many cases whether you can conceive it or no. For thô I do grant that Children are always bound to study to please their parents yet doth not this duty of gratitude or complacency include a full and perfect Dominion of Fathers in the state of Nature over the persons of their Children and an absolute power over them in all cases whatsoever so that the Children can have no right to consult their own good or preservation however it may be endangered by their Fathers passion or ill nature since a Wife is always obliged to this duty of complacency to her Husband yet is not this so absolute but that in a State of Nature she may quit his Family in those Cases I have already mentioned and against which you had nothing to object and I deny your position that Children when they attain to years of discretion derive that power and liberty they use it many actions from positive Humane Laws only or that the power which Parents naturally have over their Children can never cease by any seperation but only by the permission of the Father For as for Bodin and divers others that have written on this Subject they do no more than follw others who have asserted this absolute power of Fathers upon no better grounds than the Civil or Roman Municipal-Laws without ever troubling themselves to look into the true Original of Paternal Authority or Filial Subjection according to the Laws of Reason or Nature And most Treatises of this Subject being commonly writ by Fathers no wonder if they have been very exact in setting forth their own power over their Children but have said little or nothing of the Rights of Children in the State of Nature and therefore I shall farther let you see that this duty of Children even of pleasing or obeying their Parents can only extend to such things as they may reasonably or Lawfully command For suppose that Adam had commanded some of his Sons or Daughters never to Marry you cannot deny but this command had been void that being the only means then appointed to propagate Mankind for when there then lay a higher obligation upon them to encrease and multiply than there is
to Govern all Mankind when in a little time it became so multiplied and dispersed over the Face of the Earth and the Languages so confounded by the Act or Will of God that it was impossible for the Three Elder Sons of these three great Patriarchs to govern them But during the Life of Noah we do not read that any of his Children or Descendants withdrew themselves from him without his leave but rather the contrary for it is said The whole Earth was of one Language and of one Speech and it came to pass as they journeyed from the East that they found a Plain in the Land of Shinar c By which words it appears they kept well enough together and the very reason why they began to build the Tower was left said they We should be scattered abroad upon the Face of the whole Earth So that there was no disunion amongst them nor so much as a desire of it whilst Noah lived F. I pray give me leave to answer what you have said concerning this Distribution of the Earth by Noah's last Will and also his making all his Sons Lords or Monarchs alike both which favour so strongly of the Rabbinical Liberty of Invention that I wonder how any Learned Man can believe such idle Stories especially when the Scripture and the most Antient Histories and Records that are extant in the World mention no such thing and tho' Iosâ—phus may in the place you have cited suppose that every one of the Patriarchs he mentions were Princes or Monarchs yet he doth not say any thing like it concerning the Three Sons of Noah's being Monarchs or of this Partition of the Earth between them but maketh them to live together in those Mountainous parts till they descended from thence into the Plain so that it was impossible for Noah to make a Distribution of those parts of the Earth which were not yet discovered and it is apparent by the Scripture it self that a considerable time after Noah's Death all Mankind lived together and therefore there was no impossibility as you suppose why Noah's Eldest Son could not have commanded his Brethren and their Descendants they being not as yet dispersed or separated from each other as you may see by the first Verses of 〈…〉 of Genesis which you cited but now So that if Noah's Eldest Son was disinherited of his Right of Governing his Brethren and their Descendants that could not be the cause of it which you assign and if Primogeniture be a Divine Right appointed by God himself and unalterable by Humane Laws as you suppose I cannot see how the Will of a Father which is but a Humane Institution can ever alter it For I remember you laid it down as a Maxim at our last meeting That the Divine Right of the Right Heir never dies can be lost or taken away so that if there hath been any such thing as a Divine Right of Primogeniture belonging to the Eldest Son of Noah it is not likely that he would have permitted his two Brothers to have usurped it from him M. I shall not insist longer on this Tradition concerning the Distribution of the Earth amongst the Sons of Noah but certainly it is not a thing to be made so slight of as you do since Cedrenus a Modern Greek Historian is very particular in it besides so many other Learned Men and the great Selden among the rest have given countenance to it And tho' I grant that Primogeniture is of Divine Right yet that might very well be altered by Noah's Will especially since his Children might be satisfied that he being a Prophet and Preacher of Righteousness might make this Division of his Paternal Power by a Divine Command But I shall not dwell longer upon this but proceed to the next Period of Time viz. that of the Confusion and Dispersion of Tongues in which there are more evident Footsteps of this Right of Primogeniture as also of the Patriarchal Power I maintain And therefore pray turn to the 10th of Genesis and there you will find after the Recital of the Genealogy of every one of the Sons of Noah whose Desâ—endants are there particularly set down these words in the fifth verse By these were the Isles of the Gentiles divided in their Lands every one after his Tongue after their Families in their Nations And likewise in the 20th verse These are the Sons of Ham after their Families after their Tongues in their Countreys and in their Nations And in the last verse These are the Families of the Sons of Noah and their Generations in their Nations and by these were the Nations divided in the Earth after the Flood So that if we consider the first Plantations of the World which were after the Building of Babel and the Confusion of Tongues we may find the Division of the Earth into distinct Kingdoms or Nations by several Families and Languages whereof the Sons or Grand-children of Noah were the Kings or Governours by a Fatherly Right And for the preservation of this Power and Right in these Fathers God was pleased upon several Families to bestow a Language on each by it self the better to unite it into a Nation or Kingdom So that it becoming impossible as I said before for the Elder Sons or Descendants of these Three great Patriarchs to Govern all Mankind who now no longer understood each other's Language it was absolutely necessary that the Heads of the several Families should take that care upon them and their Children submit to them wherein they had the direction of God Almighty who had commanded them to obey their Parents and a miraculous declaration of his Will for their Dispersion by the confounding of their Language and that so ordered by God too that the Descendants of the same Person and Family spoke one Tongue was not this a declaring these Fathers Princes of these several Families and Tongues by God himself who by his Providence had thus confounded their Tongues and dispersed them by Families that they could no longer be governed by Three or Four Patriarchs but must have as many distinct Governments as there were different Tongues there being no means at present of any intercourse or correspondence one with another or with their former Governours So that however in this Confusion of Tongues by which as Iosephus supposes there were Seventy two distinct Nations erected yet were they not confused Multitudes without Heads or Governours and at liberty to chuse what Governours or Government they pleased but were so many distinct Families which had Fathers for Rulers over them of the same Speech Whereby it is manifest that even in the Confusion God was careful to preserve Fatherly Authority and Monarchical Power entire by distributing the diversity of Languages according to the diversity of Families which shews that God was still for Government and that Paternal too since it is evident that every People followed their Ancestor or Patriarch as their Prince or
a farther end than this to bless and reward a virtuous Nation or to punish a loose and degenerate Age and there cannot be a greater Blessing than a Wise and Virtuous Prince nor a greater Plague than a merciless Tyrant And therefore the Providence of God is as much concerned in setting a good or a bad Prince over any People as in rewarding or punishing them Upon this account God calls the King of Assyria the Rod of his Anger whom he raised up for the punishment of an hypocritical Nation Secondly I have already proved that by the Powers in this Text the Apostle means the Persons of Soveraign Princes and therefore according to his Doctrine those Princes who were then in Being that is the Roman Emperours were advanced by God the Powers that be that is the Princes and Emperours who now govern the World are ordained and appointed by God and that thus it is God himself tells us I have made the Earth and given it to whom it seemed meet unto me and now I have given all these Lands into the hands of Nebuchadnezzar King of Babylon my Servant This was also the Belief of the Primitive Christians under Heathen and persecuting Emperours Tertullian who wrote his Apology under Severuâ— asserts that Caesar was chosen by God and therefore that the Christians had a Peculiar Propriety in Caesar as being made Emperour by their God So likewise St. Augustine de Civitate Dei speaks to this purpose as I remember God giveth Happiness in the Kingdom of Heaven to the Godly alone But this Earthly Kingdom both to the Godly and Ungodly as it pleases him He that gave the Government to Marius gave it also to Caesar He who gave it to Augustus gave it also to Neroâ—â— He who gave it to the Vespasians Father and Son most beloved Emperours gave it also to the most cruel Domitian and not to recount the rest of them He who gave it to Constantine the Christian gave it also to the Apostate Iulian. These things without doubt the only True God governed as he pleased by Causes tho' hidden yet not unjust So likewise almost all the rest of the Fathers do own that Wicked and Tyrannical Princes are given as Punishments to the People for their Sins and so upon this account are to be endured and not resisted since it is God's Will to have it so But as for Usurpers I think I can give you a very satisfactory Answer for the most prosperous Rebel is not the higher Power while our natural Prince to whom we owe Obedience and Subjection is in being And therefore tho' such men may get the Power into their hands by God's Permission yet not by God's Ordinance and he who Resisteth them doth not Resist the Ordinance of God but the Usurpations of Men. Whereas in Hereditary Kingdoms the King never dies but the same Minute that the Natural Person of a King dies the Crown descends upon the next of Blood And therefore he who Rebelleth against the Father and murders him continues a Rebel in the Reign of the Son which commences with his Fathers Death It is otherwise indeed where none can pretend a greater Right to the Crown than the Usurper for there the Possession of Power seems to give a Right Thus many of the Roman Emperours came to the Crown by very ill means but when they were possest of it they were then the higher Powers For the Empire did not descend by Inheritance but sometimes by the Election of the Senate sometimes of the Army and sometimes by Force and Power which always draws a Consent and Submission after it And therefore the Apostle doth not direct the Christians to inquire by what Title the Emperours held their Crowns but commands them to submit to those who had the Power in their hands For the Possession of the Supream and Soveraign Power is Title enough when there is no better Title to oppose against it for then we must presume that God gives him the Irresistible Authority of a King to whom he gives an Irresistible Power which is the only means whereby Monarchies and Empires are transferred from one Nation to another There are two Examples in Scripture which manifestly confirm what I have now said The first is in the Kingdom of Israel after the Ten Tribes had divided from the Tribe of Iudah and the Family of David where God had not entailed the Kingdom upon any certain Family For after Ieroboam the first King it is plain by the Story in the Books of Kings and Chronicles that for some Successions there was nothing but Rebellion and the Murder of one King by another so that the Kingdom rarely descended from the Father to the Son and in the whole Succession of these Kings it only remained in the House of Ieâ—u for four Generations and then it returned to its former uncertainty as you may see in the 15 th Chap. of the 2 d. of Kings All which plainly shews that where there is no regular Succession to a Kingdom there Possession of Power makes a King who yet cannot afterwards be resisted and opposed without the Guilt of Treason And this was the Case of the Roman Empire at the Writing of this Epistle And therefore the Apostle might then very well say that the Powers that be are ordained of God and that whoever had the Supream Power in his hands was the Supream Power that might not be resisted But it was otherwise in the Kingdom of Iudah which God himself had entailed on David's Family as appears from the Examples of Ioash and Athaliah which we discoursed of at our last meeting but one which Examples plainly shew that no Usurpations can extinguish the Right and Title of a Natural or Hereditary Prince such Usurpers tho' they have the Possession of the Supream Power yet they have no Right to it and tho' God for wise Reasons may sometimes permit such Usurpations yet whilst his Providence secures the Persons of such deposed and banished Princes from Violence he secures their Title too But to prove more plainly that no Resistance is to be made against the Persons or Authorities of the Supream Powers let them be never so Cruel and Tyrannical as it is evident not only from what St. Paul hath here written but I shall crave leave to insist farther on that Text of St. Peter before cited in his 1 st Epistle 2 d. Chap. Submit your selves to every Ordinance of Man for the Lords sake whether it be to the King as Supream or unto Governours as unto them that are sent by him for the punishment of Evil Doers and for the Praise of them that do well where by Ordinance of Man whether we understand as some do every Human Law or with others more justly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 every human Creature as it is in the Original that is every man endued with Supream Power it comes all to the same sense and the King as the
Legitimi Barones who as Ordericus tells us came in with his Father and setled themselves here after the Conquest But as for your Quotations out of William of Malmesbury and Ordericus Vitalis â—â—ncerning the English assisting King William Rufus against his Brother Robert by using the common bait of Liberty viz. promising that he would alleviate the Rigid Laws of his Father and give free Liberty of Hunting in his Forests 't is true he thereupon raised an indifferent Army consisting chiefly of English who as Mathew Paris tells us were no better than Mercenary or Stipendary Souldiâ—â—â— and who had either no Estates or else had been turned out of them before so that this does not prove that they were men of any Fortunes who thus assisted William Rufus F. As for what you have now said against the citations of the names out of Doomesday book is not material since if English names were then common to the Normans and them then the Norman names might be as well common to the English and then many of those in England whom by their names we suppose to have been Normans might be Native Englishmen and as for what you urge against the express words of the Charters I have now cited I think it is a downright wresting of the words Francis and Anglis since no Author that I know of but your Dr. and is of that opinion For that the word Franci or Franâ—igenae does signifie such Frenchmen who held Baronies in England is granted on all hands but how Angli must also signifie Frenchmen seems a Paradox to me for how could these Frenchmen or Normans be termed Englishmen only because they held Estates here and not in Normandy for if the having such and such Estates in England would have turned Frenchmen into Englishmen there needed no such distinction to have been made between French and English Barons in these Charters since according to your Doctors Notion the French Barons could be no other ways mentioned here but as they had Estates here and therefore could be only writ to in that capacity since as meer Frenchmen they had nothing to do here so that if this Epithete was so in respect of the Tenure of their Lands they would have been stiled English Barons as well as the other nor is your other evasion more to the purpose that by the Angli might be meant in the Charters of Henry the I. such Norman or French Barons who because they were born in England might therefore be called English for who can believe that in so small a time as from the beginning of the Reign of King William the I. to that of King Henry the I. which was but a little above 30 years so many of the Norman Nobility were dead as should make it necessary to use this distinction of French and English Barons since by their Tenures they were both alike English and thus to make Angli signifie Normans is to confound and make all words tho' never so plain uncertain and equivocal but that a residue of the English And as for what Ordericus says of the old Norman Barons it would have signified if you could have proved he had called them Englishmen as he does not But if you carry it further to the time of the Empress Maud and King Stephen when all the Old Race of Normans were certainly dead then there was much less need of this distinction when all that were born in England were English alike and therefore the word French could only extend to those few Barons who being born in Normandy had Estates here But since you are forced to confess that for the first four or five years of King William the I. Reign there were both English Earls and Barons till the King had by degrees rooted them out there cannot be a better argument against your pretended right of Conquest since it is plain King William could never pretend to take away their Honours and Estates as a Conqueror since by his Coronation Oath he was sworn to restrain all Rapines and unjust Judgments and that he would behave himself modestly toward his Subjects and Treat both the English and French with equal right so that if he afterwards took away the estates of English Nobility or Gentry it was either because they deserved it by Rebelling against him then it was justly done or else it was done without any cause at all but only to oppress and root out the English Proprietors and if so such actions being contrary to his own claim from Edward the Confessor as also to his Coronation Oath could no more give him any such right to Rob or Spoil Men of their Estates without any just cause then it could give him a right to Rob the Churches and Monasteries of all the Plate Money and Jewels which he found in them even to the very Chalaws and Shrines as Matthew Paris and other Authors tell us he did in the fourth year of his Reign when likewise according as you your self set forth he began to shew himself a Conqueror or rather a Tyrant in the taking away the Estates of the English without any just cause But however the Authors of that time do not make so great a Tyrant of your Conqueror as the Doctor for William of Poictou expresly tells us who was Chaplain to this King concerning his taking away the Estates of the English and giving them to the Normans that nulli tamen Gallo datum est quod Anglo cuiquam injustè fuerit ablatum And Ordoricus Vitalis speaking of his dealing with the English it the beginning of his Reign says expresly neminem nisi quèm non damnare iniquum foret damnavit and therefore Sir Henry Spelman shews us in his Glossary out of an Ancient Manuscript belonging to the Family of Shurnborn in Norfolk That Edwin of Sharborn and several others that were ejected out of their Estates and Possessions went to the Conqueror and told him that never either before or in or after the Conquest they were against him the said King either by their Advice or any other aid but kept themselves peaceably and quietâ—y And this they were ready to make out which way soever the King pleased to appoint whereupon the said King ordered an Inquisition to be made throughout all England whether it were so or no which was plainly proved therefore he presently commanded that all those who so kept themselves peaceably in manner aforesaid as these had done should be repossessed of all their Estates and Inheritances as fully amply and quietly as ever they had or held them before this Conquest This is so plain an Authority that it needs no Comment I shall now conclude with a reply to what you have said to evade the Authorities of those Ancient Authors I have brought to prove that in the beginning of the Reign of King William the Second there were many English Gentlemen left of considerable Estates which you and your Doctor would â—ain make
also the ancient year Books or Reports of cases all written in Norman French even in our own age so that since this proceeded from that great alteration which the Conqueror made in our Laws it is also a badge of that yoak which he imposed upon the Nation by his Conquest and to make this yet more plain that very Copy of K. Edward the Confessors Laws is in old Norman French which together with K. William's Additions to them Ingulph tells us he brought down with him to his Monastery and which he has inserted into his History as you may find them in the last Edition Printed at Oxford and were before published by Mr. Seldâ—n in his Notes upon Eadmerus F. I cannot deny but that some part of the matter of fact to be as you have here laid down yet it will not follow that this common use of the French Tongue in our Reports and Laws did proceed from the Norman Conquest or is any badge of Conquest for first the most Ancient Laws of K. William which we find in Spelman and Lambert's Collections are in Latine as they were before the pretended Conquest I grant indeed those you mention in Ingulph are in French but they being most of them criminal or penal laws or else concerning Tenures it is no wonder that they were publisht in the Language of his Country that the Normans and other Frenchmen he brought over with him might understand them and tho' they were written in French yet they were proclaimed in the English Tongue that the English as well as Normans might take notice of them but after these Laws you will not find any ancient Charter or Statute in French till the Statute of West I. which was above 200 years after your pretended Conquest for all the Charters of this K. William are in Latine or Saxon as that particularly granted by him to the City of London so likewise were all the Ancient Charters and Laws of the other succeeding Kings as those of K. William Rufus Henry I. Henry II. King Stephen Richard I. are all in Latine or Saxon and none of them in French as appears by several of them still to be seen in the Arch-bishops Library at Lambeth and in Sir Robert Cotton's and also Magna Charta and all other Statutes and Charters of K. Iohn and Henry the third till the Statute of West I. above mentioned and therefore it is not likely that this custom should have taken its original from Normandy for if it had it would have been begun immediately after your Conquest and as for our Law Books tho' I grant those you mentioned to be written in French yet is it not the Norman French since it differs very much from the Language in which K. Edward's Laws are written which are in Ingulph the French of which is so obsolete and obscure that he that understands our Law French very well can scarcely make any sense of them but our first Writers concerning the Laws of England writ in Latine and not in French as you may see by Glanvil Bracton and Fletâ— who writ before Horn's Mirrour of Justices or Britton's Treatise of the Laws of England As for your Books and Reports I grant they are in French but that this custom was not derived from Normandy is also as certain since the first Reports we have begin with the first year of Edward the second except some few Memorandums of cases aâ—judged in the Exchequer in the Reign of his Father above 200 years after K Wâ—lliam's coming in as I but now noted nor could they be writ in the Norman dialect since we had then nothing to do in that Dutchy which had been Conquered by the French in the beginning of K. Iohn's Reign above eighty years before any Report or Law book was writ in French at all and therefore we must ascribe the original of this custom to some other cause than the meer will and pleasure of your Conqueror and for this we must go as high as the Reign of K. Edward the Confessor who as Ingulph tells us having lived long in Normandy and bringing over divers Normans with him the whole Nation began under this K. to forsake the English customs and to imitate the French manners in many things so that all great men looked upon it as a piece of good breeding to speak French in their Houses and to make their Deeds and Charters after the French manner so that it was very easie for K. William after his coming in who as Ingulph also tells us abhorred the English Tongue to make the Laws of the Land to be pleaded in the French Tongue and to make the Boys to learn at School the first rudiments of their Grammer in French and also the Saxon or English hand to be altered and the French hand to come in use in all Books and Writings and tho' I confess most of the chief Justices and Judges were Frenchmen or Normans during the three or four first Kings of that Race yet that alone could not have caused this Tongue to be so generally used not only in the Kings Court but also in all the Courts at Westminster after Englishmen began again to sit there had it not been for the Tacite consent not only of the King and People of Quality but also of the Lawyers themselves for the Law Terms being for the most part French they did not only thereby make the Law the greater mystery to the Vulgar but they also supposed that these Terms being French could not be rendered into any other Language but for all that it had been impossible for this Tongue which was spoke by so small a number of Persons in respect of the whole Nation to have prevailed so long among the better sort of People had not our Kings for many Ages enjoyed large Territories in France which occasioning their frequent going over thither about affairs of War or Peace as also the French Gentry and Nobilities frequent coming over hither it is no wonder if that Tongue being the Language of the Court was generally understood and spoken by all Noblemen Gentlemen and Lawyers so that I have heard it from a very good hand a person who is very well versed in Antiquity that a Gentleman being returned on a Jâ—ry in the Reign of Edward II. was excepted against because he did not understand French and hence it is that not only the Terms of our Law but also those of Heraldry Hawking and Hunting are almost all French to this day and tho' by the Statute of Edward the third which you but now mentioned all Pleas should be in English and not in French yet I desire you to take notice that this did no way extend to any matters of Process upon which suits are founded but that the Writs Declarations and all other matters of Record were always entered and enrolled in Latine from before the Conquest to this very day so that there was never any alteration as to that point these
Seventh which we are now disputing about was made expresly to secure and indemnitie all those who should attend upon the King for the time being and do him true and faithful service of Allegiance c. And therefore it lies upon you still to prove that this Statute is either expired or else void in it self otherwise besides the constant practice of former times we have here an express Act of Parliament declaring it every Mans duty to pay Allegiance to the King for the time being and then certainly he is as much oblig'd to Swear it too M. I doubt not but I shall prove to you that this Statute expired with Henry the Seventh from a Clause in the Act it self for if you please to read immediately after those words you have now cited that all those who do the King for the time being true and lawful Allegiance c. it follows thus shall be secured from all manner of forfeitures and molestations relating to their Persons or Estates but mark provided always that no person or persons shall take any benefit or advantage by this Act which shall hereafter decline from his or their said Allegiance now we know a proviso is an exception or restraint upon the latitude and comprehensiveness of the Law and that all Statutes are perfectly null so far as the proviso reaches Having premised this I shall endeavour to prove that this Act was design'd only for the security of that Reign in which it was made and cannot be stretched any farther To make this appear let us now suppose a competition between the King de jure and Henry the Seventh that is one de facto and that the Subject engages for the latter in this case if the King de facto prevail there is no need of the assistance of this Statute for we cannot imagine any Prince could be so impolitick as to punish those who have ventur'd their All to maintain him in his Government this besides the ingratitude of the action would proclaim the injustice of his Cause and would serve only to ruine his interest F. Notwithstanding this objection you have now made I doubt not but this Clause will bear a very fair and legal interpretation and that not in respect of the Allegiance that might be due to the King de facto but to the King de jure since if it were not for the indemnity provided by this Statute the King de facto would have been oblig'd to have punished them for opposing their lawful Prince M. This is easily answer'd for pray do Kings de facto always perform that which the Law requires if so they never would have been Kings de facto since they could not make themselves Masters of the Sovereign power without dispossessing those who are supposed the right owners of it Secondly the possessour would not so much as seem oblig'd to punish his adherents upon a competition except he own'd himself to be no more than an unjust Usurper but we have neither example nor reason to expect such singular concessions as these for no Usurper will own himself in the wrong so long as he intends to enjoy the advantages of his injustice upon supposition therefore that the Victory had fallen on the side of a King de facto the Act would be wholly superfluous F. But why may we not also suppose that this Clause was inserted not only to secure those who had assisted the King de facto against your King de jure but also to debar all those who had fallen from their Allegiance to the King de facto from receiving any benefit by this Act if ever they should plead it in their own justification after the King de jure had prevail'd and was again setled in the Throne M. You may take it in this sence if you please but if you do it will not at all mend the matter for tho' those that stood by the King de facto will have great occasion for an Act of Indemnity yet this Act will be as helpless to them now as it was needless before for either they must submit to the King de jure or not if they do not submit it 's easie to imagine the Consequences how a Victorious and irresistible Prince will treat the obstinate and rebellious opposers of his just Title if they do submit as of necessity they must then they can claim no manner of priviledge and indemnity from this Act for they cannot come into the Party of the King de jure without deserting that de facto i. e. without declining their Allegiance to him who was King when this Statute was made by declining which Allegiance the proviso expresly excludes them from all manner of benefit or advantage by this Act. In this condition the Law would have left the de facto Party if the Sovereignty had been disputed between Henry the Seventh and the House of York and that the Prince de jure of the House of York had been successful from whence it 's undeniably plain that neither the design nor words of this Statute can be drawn to such a monstrous construction as to enact bare possession to be a good Title and make Might and Right the same thing The only design of this Parliament was to continue the Crown to Henry the Seventh during his life which both by the body and proviso of the Act was effectually done as in them lay for divers reasons that might then prevail with the two Houses to consent to a temporary alteration of the Succession to the Crown such as these that though Henry the Seventh had no just Title in his own right yet in the right of his Wife he had which he did no way disavow by this Act and you must also remember that at this time Henry the VIIth had several Children by his Queen viz. Prince Arthur Henry c. So that now the contending Families of Yorke and Lancaster being thus hapily united there was no reason to sear that a security though an unusual one to the present possessor could be prejudicial to the right Line especially since the force of that Act was confined to the Reign of that Prince as has been already proved F. You may fancy if you please that you have prov'd this Act to be expired but I think if you better consider of it you will find your self mistaken for though I may very well suppose that the King and Parliament to deter men from falling from their Allegiance to the King for the time being might insert this Clause upon a supposition that the next King whoever he was whether by right of blood or only de facto would out of a generous aversion to Traytors and Deserters hinder them by vertue of this Clause from enjoying any benefit by this Act yet I shall not longer insist upon 't whether it be insignificant or not and therefore will at present grant it to be so but what then Will a void Clause vitiate or render expir'd