quit his Fathers Family and joyning himself to his Wife may set up another of his own But as for the Children that were begotten between them tho' I grant they might be intended both for the comfort and assistance of him and her yet I have already proved that the Parents are more chiefly intended for their Childrens Propagation and Preservation than the Children are for their Interest and Happyness Your fouth consideration is only a supposition of the question which is yet to be pâ—oved that Eve was under an absolute subjection to Adam after the Fall I have already proved this supposition not to be true and therefore the consequence as to the Children is false likewise Your fifth is rather an interrogation than an Argument whether Children ought not to be and have not always been subject to their Parents all over the World In answer to which I grant that it is true that they have ever been so tho' not in your sense For I hold this subjection neither to be servile or absolute nor yet perpetual as long as they live but in reply to this limitation of the Power of Parents over their Children both in its extent and duration you tell me this is purely owing to the Civil Laws of Nations and not to the Laws of Nature and for a proof of this you produce Gods own people the Jews for an example that the power of the Father over his Son was not determined but by his Death But your self confesses that he could not exercise this Power of Life and Death but in the presence of the Magistrate the circumstances of which if they be considered will rather make against you for first the Father could not have this rebellioâ—s Son put to Death till he had accus'd him before the Elders of the City that is the Judges who were establisht in every Precinct who upon a solemn hearing were to sentence such a rebellious Son to be stoned to Death by all the People of the City where you may observe that the Father had no power to put him to Death himself and therefore acted in this case as an accuser or a witness not as a Judge But if you 'l believe Maimonides one of the most Learned of the Jewish Rabbins he will tell you that by the Municipal Law of the Jews this power of the Father did scarce extend beyond the thirteenth year of the Son's Age after which the Son was reckoned Adult and Emancipated from his Fathers Powers and could not after that incur this punishment of a Stubborn and Rebellious Son and a Father who did but strike his Son after he was Adult incurr'd Excommunication for that he offended against the Law And tho' I grant that the Nations you mention did exercise a Power of Life and Death over their Wives and Children yet will not the Practice of some particular Nations tho' never so much civiliz'd amount to a proof of a Law of Nature which is only to be made out from evident Rules of Right Reason and the great end of this Law the common good of Mankind and especially when against the Examples of those Nations which you produce I can likewise set those of many more Nations where this Custum was not allowed after once Civil Government was establisht And as for the Romans themselves amongst whom the greatest Examples of this kind are to be found they will not all of them amount to above three or four in six or seven hundred years and then tho' there might be very good cause for it yet the People of Rome never so much esteemed or loved such Fathers after they had put their Sons to Death as they did before but counted them too severe and cruel for so doing And you read in Valerius Maximus and Seneca that they killed Erixiin a Roman Gentleman for whipping his Son to Death like a Slave so much did they abhor all such Cruelty of Parents towards their Children and afterwards when by the General Corruption of Manners amongst the Romans Fathers grew more cruel to their Children and often put them to Death without cause Those of your Faculty suppose that some of the Roman Emperous tho' it is uncertain who took away this Power from Fathers and made it as it is now among us Murder for a Father to put his Son to Death tho' others since there are no particular Edicts to be found concerning this matter do suppose this Law to be changed by degrees and to be left off by common consent of the Romans themselves for it seems dangerous to grant to a private person the cognizance of any crime which might belong to publick Authority and they thought it better to strengthen both the Paternal and Marital Power by other Laws than putting to Death And therefore Simplecius upon Epictetus his Enchiridion says that the Romans allowed Fathers this Power because they thought they might very well trust their Natural Affection to their Children for the exercise of that Power of selling them or putting them to Death which 't was supposed they would rarely use unless compelled by extream necessity or unpardonable crimes and therefore if a Father would put his Son to death he was to do it with his own hands that he might suffer as well as his Son but when this render affection â—oo failed it was no wonder that the Roman Emperors did not think it for the common good of their People to trust Fathers with this Power any longer which they had hitherto exercised not so properly by right of Fatherhood as that of the Master of a Family who governed his Servants and his Sons by a like Authority To conclude I cannot but observe how slyly you wave my objection against the Divine Institution of Monarchy for tho' you seem loth expresly to condemn all other Governments as unlawful yet the consequence will be the same upon your principles For if it be a good argument which some make use of for the Government of the Church by Bishops because that Government being supposed by them to have been instituted by the Apostles by Divine Precept therefore that no other Government but Episcopacy can be lawful or any true Church where that Government is not in use so the same argument will likewise hold in Civil Governments that all others must be unlawful if Monarchy alone were ordained by God and that all other forms whatsoever began from Rebellion or the Fancies of Men. M. To answer what you have said in the first place I cannot so slightly pass over this argument of the Law of Nations by which I supposed the Power of Fathers over the Persons of their Children is sufficiently established and from whence also it appears that among the Iews as well as Romans the Children were lookt upon as part of the substance of their Father and consequently that they had a perpetual right in their Persons as long as they lived that the Romans had the power of selling their Children
the power of the two Houses of Parliament I am very well satisfied that such a Declaration must be void in it self since I have sufficiently proved that there was no such Law of Succession ever setled by any general Custom or Common Law since it hath been near as often broken as observed and as for any positive or Statute-Law enacting any hereditary right of Succession you do not so much as pretend to show it so that I think I have sufficiently proved the three Propositions I laid down viz. That ever since the time of Edward the First though the Crown has been claim'd by right of blood yet has it not been very often enjoy'd by Princes who had no just pretence to that Title Secondly that the two Houses of Parliament have often notwithstanding that claim placed or at least fixed the Crown upon the heads of those Princes who they very well knew could have no hereditary right to it Thirdly That such Princes have been always taken for lawful Kings all their Laws standing good at this day without any Confirmation by their Successours M. I did not think that you who were so great an admirer of the two Houses of Parliament should now be so much against their power in joyning with the King to declare what the true right of Succession to the Crown is and hath ever been from time beyond memory But I see Acts or Declarations of Parliament signifie nothing with you if they are against your Hypothesis or else you would never go about thus to expose those Acts of Parliament of King Edward the IVth and King Iames the Ist. Whereby they are declared both by the Law of God and Man undoubted Heirs of the Crown And the last Act I cited viz. That of King Iames the Ist. doth sufficiently confute your Notion of a Vacancy of the Throne Where it is expresly declared That immediately upon the decease of Queen Elizabeth the Crown of England with all the Dominions belonging to the same did by Inherent Birth-right and Lawful and Undoubted Succession descend and come to his Majesty King Iames. So that if there then were no Vacancy of the Throne I cannot see how there could be any such thing now the next Heir to the Crown be He who they will being certainly not so far removed from King Iames the Ist. as himself was from King Henry the VIIth under whom he claimed F. I must still confess my self to have a great veneration for the solemn Declarations of King and Parliament made by any Statute yet not so as to Idolize them or to look upon all their Declarations as infallible I grant indeed that whosoever is by them Declared and Recognized for King or Queen of England is to be acknowledged and obeyed as such by all the Subjects of this Kingdom without farther questioning his Title But if not content with this they will also take upon them to declare that such Kings or Queens have an undoubted Hereditary Right by the Laws of God and Nature When I plainly find from the Holy Scriptures as well as the History of matter of Fact and the knowledge of our Laws that they have no other Tiâ—le than what the Laws of the Land have conferred upon them and therefore you your self cannot deny but that it was gross flattery in the two Houses of Parliament to declare that Richard the IIId for-example had a true and undoubted Right to the Crown by the Laws of God and Nature and also by the Laws and Customs of this Realm when you know he was a notorious Usurper upon the Rights of his Brother King Edward's Children now how can I be assur'd that the like Declaration made to Kâ—ng Iames the I. was not lâ—kewise a piece of Courtship of the Representative of the Kingdom to this King then newly setled in his Throne since we find the People of this Nation when they are in a kind fit never think they can say or do too much for their Princes and therefore I must freely tell you that it is not the bare Declaration of a Parliament that this or that has been always the Law or Custom of this Realm when we can find from History that it has never been so held for above four hundred years at least and therefore not beyond the memory of Man as you suppose since that must be before the Reign of Richard the First as I have already proved to you at our Eighth Meeting But to answer your Objection against the vacancy of the Throne I do freely grant that aâ— often â—s the Crown descends by lineal Succession there can be no vacancy of the Throne as it did in the Case of King Iames the First yet doth it not therefore follow that there can never be any such Vacancy in any Case whatsoever since certainly it may so happen that all the Heirs Male of the Blood-Royal may fail as it happen'd in the Case of Scotland when Iohn Balioll and Robert Bruce contended for the Crown which not being to be decided by the Estates of the Kingdom they were forced to referr it to our King Edward the First and as also happen'd in France when Philip of Valois and our Edward the III d both claim'd the Crown which was decided by a great Assembly of the Estates of France in the favour of the former who claim'd as Heir of the Male Line against King Edward who was descended by a Woman and if King Iames's Abdication or Forfeiture call it which you will is good pray give me a sufficient Reason why the Convention of the Estates of England should not have as much Authority as those of France or Scotland this being as much or more a limited Kingdom thau either of the other ever were M. I do not deny that but pray shew me any sufficient Reason why the Convention should now Vote a Vacancy of the Throne since there was certainly an Heir Apparent not long since in England and I hope is now safe in France who ought to fill it or at least there should have been some sufficient cause alledged against him to prove that he was not true Son either of the King or Queen and till this was done they could not with any Right or good Conscience place any other Relation of his in the Throne since every Person ought to be esteem'd the Son of that Father and Mother that publickly own him for such for it is a Maxim in our as well as your Law Filiatio non potest probari F. How this could be performed without first declaring the Throne vacant I cannot apprehend for you your self must grant that there have been great doubts and suspitions of the Realty of this Prince of Wales and therefore that being one great reason of the Prince of Orange's coming over The truth of this Child whether he was really born of the of the body of the Q. is first to be examin'd and determin'd before he can be declar'd K. of England in the
the Apostle to Sons but to Servants or Slaves whose lives and all that they had were at their Masters absolue disposal being those whom the Apostle Paul calls Servants under the yoke and unless you will make a Slave and a Son to be all one which you have already denyed this precept doth not at all concern them And as for Example of Isaac that will make as little for your advantage for first as to Abraham he could not but know that to kill his Son without any just cause was as much murder in him as in any other Man Now what could be a juster or a higher cause than Gods particular Command So that as this act of Abraham is not to be taken as an Example by other Fathers so neither doth the Example of Isaac oblige other Sons to the like Submission therefore it is most reasonable to suppose that Isaac being then as Chronologers make him to be about nineteen or twenty years of age and of years of discretion to ask where was the Lamb for the Burnt-offering was also instructed by his Father before he came to be offered of the reason of his dealing thus with him and then the Submission was not payed to his Fathers but to Gods will from whom he miraculously received his being But if any Man doubt wheter resistance in such a Case were Lawful I leave it to his own conscience to consider whether if his Father had him alone in a place where he could neither run away nor yet call for help he would suffer his Father to cut his Troat without any resistance only because he pretended Divine Revelation for it Not but that I so far agree with you likewise as to limit such a resistance only to the holding his Fathers Hands or warding off his blows but not to the taking away his life but of the two rather to lose his own than to kill him for the reasons you have given and which I will not deny but yet if the Father be mad I much doubt whether the Son is boâ—nd to let him kill him rather than take away his life since such a Father's life is no way useful to the good of the Family So that thô I should grant that Paternal Power is from God and consequently irresissible yet doth it not follow that all the unjust force or violence which a Father as a Man may use against his Sons life or fortune is such part of a Paternal Power as God hath commanded us not to resist since your self must grant that he doth not thus act in going about to kill his Son as a father but a violent and wicked Man So that where the father hath no Right to take away his Sons life I think in all such Cases the Right of the Son to resist him doth take place And if a Man may resist or bind his Father when he is Mad or Drunk and in such fits goeth about to kill him I can see nothing to the contrary why he may not do the same thing when his Father is transported by a sudden rage or unreasonable malice since both of them do take away the use of natural Reason as much the one as the other according to that saying of the Poet Ira furor brevis est Anger is but a short madness Fury and Malice being alike fatal and destructive to the Sons life and safety with Drunkenness and Madness nor doth such a Son resist his Paternal Power but only his Brutish force and violence So that if Sons when grown to years of discretion have not a right to defend their lives in the State of Nature against all Persons whatsoever who go about to take it away without any just Cause every Son ought to suffer his Father to kill him when ever being transported by madness drunkenness or sudden passion he hath will so to do which how it can consist with that great Law of Nature of propagating and preserving the species of Mankind if a Father should have any unreasonable unlimitted Power I 'll leave it to your self or any other reasonable Man to consider nor doth it follow that because a Son can in no wise be Superiour to his Father he ought not therefore to resist him since thô I grant punishment is a Right of Superiours over their Inferiours yet so is not resistance since every one knows that resistance is exercised between equals as I have already proved Sons are to their Fathers in all the Rights of life and self-preservation and conseqently to judge when their Lives and Estates are unjustly invaded M. I must confess I am in a great doubt which will most conduce to that great Law you mention which I grant to be the Sum of all the Laws of Nature viz. of preserving or prosecuting the common good of Mankind that Fathers should have an absolute irreâ—istible Power over the Lives and Fortunes of their Children let them use it how they will or else that Children should have a Right to resist them in some cases when they go about to take away either of them without any just Cause for thô I own that if the former Principle be true Parents may be sometimes tempted to take away their Childrens Lives or Estates without any just Cause so on the other side if Children shall assume such a Power to themselves of judging when their Fathers do thus go about to invade either their Lives or Estates it will I doubt lay a foundation for horrid confusions and divisions in Families since if Children are under a constant subjection to their Fathers they ought then to be absolutely Subject to them in the State of Nature and therefore ought not to be resisted For if all Fathers and Masters of Families are trusted by God with an absolute Power of Life and Death over the Wife Children and Servants of the Family as your self cannot deny then no resistance of this absolute Power can subsist with the peace and tranquility of that Family without the diminution or total destruction of that absolute Power with which they are intrusted And thô I admit that Parents ought neither to use nor sell their Children for Slaves not to take away either their Lives or Goods without great and sufficient Cause yet of these Causes Fathers in the state of Nature must be the only and uncontrolable Judges since if Children whom I still consider as Subjects thô not as Slaves in the State as long as they continue members of their Fathers Family should once have a Right to resist when they thought their Lives or Estates were unjustly invaded they might also oftentimes through undutifulness or false suggestions pretend or suppose that their Fathers were mad drunk or in a passion and went about to take away their Lives when really they intend no such thing but only to give them due correction Which would give Children an unnatural power of resisting or perhaps of killing their Fathers upon false surmises or flight occasions And as
this would introduce great mischief and confusion in privte Families so would it likewise prove a Foundation of Rebellion against all Civil Powers whatsoever if Subjects who are the same thing in a Kingdom that Children are in a Family in the State of Nature should take upon them to resist their Prince when ever they think he goeth about to invade either their Lives or Fortunes which would likewise serve to justify all the most horrid Rebellions in the World since all Rebels whatsoever may or do pretend that their Lives Liberties and Fortunes are unjustly invaded when indeed they are not and Likewise upon the least hardship or injustice in this kind inflicted upon any private Subject either by the Prince or his Ministers which abuses and violences do often happen even under the Best Governments any such private Person who shall think himself thus injured may upon this principle take up Arms and endeavour to right or defend himself against such violence by which means under pretence of securing a few Men in their Lives or Estates whole Kingdoms if such Persons can find follows enough may be cast into all the mischiefs and confusions of a Civil War till the Prince and Government be quite destroyed F. I must confess the Arguments you now bring are the best you have yet produced since they are drawn from that great and certain Law of procuring the common good and peace of mankind But I hope I shall make it plain to you that no such terrible consequences will follow from the Principles I have already laid down and therefore I must first take notice that you have in your answer confounded two Powers together which ought to be distingishued in the State of Nature viz. The Power which Fathers as Masters or Heads of Families may exercise over the Lives of their Children or Servants whilst they remain Members of their Family and that reverence and duty which Children must always owe their Fathers as long as they live even after they become Fathers or Masters of Families of their own In the first State I have already allowed that such Fathers as Masters of Families may Lawfully exercise a far greater Power over their Children whilst they are members of their Family than they can when they are seperated from it yet is not this Power in all Cases absolute or irresistible as I have already proved and therefore I do in the first place restrain this Right of self-defence only to such Cases where a Father would take away a Sons life in a fit of drunkenness madness or sudden passion without any crime committed or just cause given which I also limit to a bare self defence without injuring or taking away the life of the Father if it can possibly be avoided and in this Case if the Son who is like to suffer this violence may not judge when his life is really in danger to be destroyed because he may pretend so when really it is not This is no just reason to overthrow so great a Right as self Preservation since if this were a sufficient objection it would have the same force against all self defence whatsoever For it doth often happen that wicked and unreasonable Men will pretend that they were forced to take away the lives of others only to preserve their own when indeed it was altogether false and needless and they only killed them to satisfy their own malice or passion And therefore as there is no reason that the abuse of this natural Right should be used as an Argument against the use of all self-defence by any Man whatsoever So likewise neither ought the like abuse hereof by some wicked Children to be brought as an Argument against its being made use of at all by others who are never so unjustly assaulted and in danger of their Lives from their Fathers violence If the first principle be true on which this is founded that a Son may excercise this Right of self-defence in such Cases without any intrenchment upon his Fathers Paternal Authority or that Filial duty and respect which he must always owe him when ever he returns to himself and will behave himself towards him as becomes a Father and not like an Enemy or Cut-throat And as for the quarrels and confusions which you alledge may happen in Families between Fathers and Children in case such a liberty should be allowed those inconveniencies will prove very inconsiderable if you please to take Notice That first I do not allow this Right of resistance to be exercised by any Children before they attain to years of discretion Secondly that after they have attained to these years no resistance ought to be made against a Father whilst they remain part of their Fathers Family but only in defence of their own their Mothers Wives and Childrens Lives since I grant that a Son as long as he continues a member of his Fathers Family ought to bestow all his own labour for his Fathers profit and cannot acquire any property either in Lands or Goods without his Fathers consent And since you conceive this Right of self-defence if allowed to Children would be the cause of so great mischiefs in Families if Children should have no Right to judge when their Fathers abused their power over them let us a little consider on which side this abuse is most likely to happen for if you please but to look into the World and survey the Nature of Fathers and Children and set the faults of the one against the other you will find that as I confess it is the Nature of many Children to contradict and disobey their Fathers Commands and that most young people hate restraint and love too much liberty and may oftentimes think their Fathers too harsh or severe to them when really they are not yet doth such false surmises and disobedient actions seldom end either in absolute resistance or taking away their Fathers lives by force or if they do so it is really done for their own defence or whilst they are assaulted by them in their own Lives or those of their Children but is commonly acted privately to satisfie their own revenge or malice which I hold to be utterly unlawful so likewise let us consider on the other side those temptations that Fathers lye under of injuring their Children or taking away their Lives or uâ—ing them like Slaves without any just Cause you 'll find that they by reason of their age natural temper or infirmities may be easily transported to that degree of passion that not considering the follies of Youth they may oftentimes in their passion either beat them so cruelly as utterly to disable or maime them or else take away their Lives for little or no Cause And besides Fathers being often covetous and ill-natured which are the vices of old age may where there is no power over them to restrain them from it either keep them as Slaves themselves or else sell them to others for that purpose as I
have already given you an example of the Negroes in Africa and which of these two inconveniencies are most likely to happen between Children and Parents in the State of Nature I should leave is to any indifferent Man to judge between us And therefore I think it more conduces to the good and peace of Families and consequently the happiness and preservation of Mankind which are the end of all Laws that Children should be allowed these Rights I have alâ—erdy laid down of asserting this Natural Liberty from Slavery and defending their Lives and those of their Wives and Children from the unjust violence of their Fathers than that they should be left wholly at disposal to be maimed killed or ruined when over this coveteousness passion or malice may prompt them to it Sence if all Fathers were satisfied that their Children have a Right thus to defend themselves in these Cases against their unjust violence it would be a means to make them act more catiously and to behave themselves with greater tenderness and moderation towards them So than to conclude I utterly deny that these Principles I have here laid down do at all rend to countenance Rebellion or raising disturbances in Civil Governments since I cannot allow you have proved Parents to be Princes or Monarchs in the State of Nature or that Families and Kingdoms or Commonwealths are all one Or if I should grant them to be so yet would it not therefore follow that every private Subject in a Civil State hath the same Right to defend his life or that of his Wife and Children against the violence or injustice of the Supream Powers as a Son may have in the State of Nature to defend his life c. against his Fathers rage or violence since I grant no particular Subject can contradict or resist the Supream Power of the Lawfull Magistrate however unjustly exercised by force without disturbing or at least endangering the quiet and happiness of the whole Community and perhaps the dissolution of the Government it self which is against the duty not only of a good Subject but also of an honest Moral Man who will not disturb the publick tranquility for his own private security or revenge But in private Families the Case is otherwise and Children may resist their Father in the Cases already put without introducing either Anarchy or Civil War in the Family since it can scarce be presumed that either their Mother Brothers or Sisters will take part with a Son or Brother against their Husband and Father unless it ware that they might thereby hinder him from committing murder by defending their Son or Brothers life when thus violently and without cause assaulted and if it should sometimes happen otherwise yet this would be a much less mischief then that out of this fear the Lives and Liberties of an innocent Wife and Children should suffer without cause by his drunkenness or passion But as for the resistance which Sons may make in the State of Nature and when separated from their Fathers Families it is of a much larger extent since they may then not only defend their own Lives but also those of their Wives and Children with their Estates against their Fathers unjust violence Thò I do here likewise restrain this self-defence only to cases of actual invasion or asault of such Fathers upon the Lives and Estates of his Children in which cases I also absolutely condemn all actions and proceedings done by way of prevention before such violence or assault is actually begun to be made upon them much less do I allow of any revenge or return of evil for evil by such Children when the danger is over since however such revenge may be Lawful between Persons in the State of Nature no ways related or oblieged to each other yet do I by no means allow the same Priviledge to Children against their Parents since I look upon the obligation they have to them to be of so high a Nature that it can never totally be cancelled thô in those cases of self-preservation and defence they may be suspended for a time As if I owed my life and all that I have to some great Person who hath either saved the one or bestowed the other upon me thô I should be very undutiful and ungratful too if upon his becoming my Enemy thô without any just cause I should go about to return his injuries in the same kind yet were I not therefore obliged to give up that Life and Estate he had before bestowed upon me when ever he thought fit without any just occasion to take them away and I am confident that Resistance in these cases and with these restrictions doth neither derogate from that Gratitude and Piety which Children always ought to pay their Fathers nor yet can tend to encourage either Anarchy or Rebellion since such Sons when once married and are become Masters or Heads of Families themselves they then cease to be under their Fathers Subjection as they were before tho I confess they are always to honour and reverence him according to Gods Command in all cases when they will deal with them as Fathers and not as Enemies M. I shall no longer dispute this Right of Resistance in Children in the Cases you have put since I see it is to little purpose to argue longer with you about it but this much I think is still true that all Supream Powers whatever cannot without Rebellion and absolute dissolution of the Government be risisted by the Subject so that if the Government of Fathers or Heads of Families be Supream as you seem to grant that cannot be resisted neither without bringing all things therein to Anarchy and confusion F. Pray give me leave Sir to interrupt you a little I desire you to remember that I do not allow the Power of Fathers or Masters of Families to be any more then Oeconomical and not Civil Power and I have already shewed you how Resistance of such a Power when violently and unjustly exercised may be resisted without any Anarchy or confusion in the Family but as for Resistance of Civil Powers in some Cases it is not the Subject of this discourse and therefore I desire you would now mind the Subject in Hand and not pass off to any other till we have dispatcht this so that I would rather if you have any fresh objections to make that you would now do it because it groweth late M. I must confess ingeniously your Arguments have much sâ—aggered me since I see great inconveniencies may happen on either side for if the Father or Master may be the sole Judg when and how he may exercise this absolute Power I grant all those mischiefs may sometimes fall out which you have here set forth so on the other side if the Children may be Judges in their own case those evils may often happen which I have already alledged And therefore pray pardon me if I am not too hasty in altering my opinion in
Subjection to Adam since they could never have quitted his Family without his consent and when they did quit it unless he pleased to manumit them they their Wives and Children were still as much Subject as they were before Since I do not see if they were once Subjects to him how any thing but his express will and consent could ever discharge them from it Nor was that Authority which every one of these Sons of Adam might Exercise over their Wives and Children though they were not freed from the power of their Father any more inconsistent with that Subjection and Obedience they owed him as their Prince than in an absolute Monarchy the power of Fathers and Husbands over their Wives and Children as to the things relating to the well-ordering and governing their Families is inconsistent with that supreme predominant power which the Monarch hath over the Father himself and all his Family or than the power of a Master of a Family in the Isle of Barbadoes over his Slaves that are Married and have Children is inconsistent with that Marital and Paternal power which such a Slave may exercise over his Wife and Children within his own Family though still subordinate to the will of the Master who may forbid any such Slaves or their Children to Marry but where he hath a mind they should and may likewise hinder them from correcting or putting to Death their Wives and Children without his consent Though such Subjects in an absolute Monarchy or Slaves in a Plantation cannot have or enjoy any Property in Lande or Goods but at the Monarchs or Masters will And so likewise at first none of these Sons of Adam though they set up distinct Families from their Fathers could enjoy or inclose any part of the Earth without his Grant or Assignment to whom the whole was given by God before It seems likewise to be a great mistake when you at first affirmed that all Civil Government was Ordained by God for the benefit and advantage of the Subjects rather than the Governours Whereas from the first and most Natural Government it appears that Children who were the Subjects were Ordained as much for the benefit and help of their Parents who were the first Monarchs as their Parents for them From all which we may draw these Conclusions First that from Gen. 3. v. 6. already Cited we have the Original Charter of Government and the Fountain of all Civil Power derived from Adam as the Father of all Mankind So that not only the Constitution of power in general but the special limitation of it to one kind viz. Monarchy and the determination of it to the individual person of Adam are all Ordinances of God Neither had Eve or her Children any Right to limit Adam'â— Power or joyn themselves with him in the Government Now if this Supreme Power was setled and sounded by God himself in Fatherhood how is it possible for the people to have any Right to alter or dispose of it otherwise it being God's Ordinance that this Supremacy should be unlimited in Adam and as large as any Acts of his Will So that he was not only a Father but a King and absolute Lord over his Family a Son a Subject and a Servant or Slave being one and the same thing at first the Father having power to dispose of or sell his Children or Servants at his pleasure and though perhaps he might deal too severely or cruelly in so doing yet there was none above him except God in the state of Nature who could call him to an account much less resist or punish him for so doing F. You have Sir made a very long Speech upon the Monarchical power of Adam which you have made of so large an Extent that this imaginary Kingship will swallow up all the other more dear and tender Relations both of a Husband and of a Father So that were I not satisfied you were a very good natured Man and spoke more the sense of others than from your own Natural Inclinations I should be apt to believe that if you had sufficient Power you would prove as great a Tyrant over your Wife Children and all that should be under your Command as such Arbitrary Tenets would give you leave but since I hope your Errour lyes rather in your Understanding than in your Natureâ— I shall make bold to shew you the mistakes you have committed in those Principles you here lay down I might first begin with the place of Scripture you farther insist upon for Eve's absolute Subjection to Adam from the like Expression used by God to Cain concerning his ruling over his Brother Abel as is us'd here to Eve and tho' you are pleased to think my exposition of this place so ridiculous yet I doubt not but I be able to prove when I come to speak of this pretended Divine Author of Elder Brothers over this younger that this place cannot be understood in any such sense according to the best Interpretation that both the reason of the Subject and the sense the best Commentators put upon it can allow but I shall defer this till we come to discourse concerning the successors of Adam in this Monarchical Power you suppose And therefore I shall only at present pursue that absolute Power which you suppose Adam to have had not only over Eve but all her descendants So that your Argument of Eve's and consequently all her Childrens absolute Subjection to Adam depends upon a very false supposition For if the Subjection of Eve to Adam and of all Wives to their Husbands is not servile or absolute neither can that of the Children be so since according to your own simile if the streams are of the same nature of the Fountain they can never rise higher than it and tho' I grant Adam might in some cases have put his Wife or Children to death for any enormous crime against the Law of Nature yet I allow him that power not as a Husband or Father but only as a Lord or Master of a separate Family who having no Superiour in the state of Nature I grant it is endued by God with this Prerogative for the good of his Family and preservation of Mankind lest such horrid crimes so much to its prejudice should pass unpunisht But that the Husband or Father doth not act thus in either of these two capacities I can easily prove First Because the Scripture tells us the Husband and Wife are one Flesh and that no man ever yet hated his own Flesh so that it is impossible for a Husband to put his Wife to death till by the greatness of her Crimes she becomes no longer worthy of that tender affection he ought to bear her Then as to the Father he as a Father ought not to desire to put his Son to death whose being he hath been the cause of and who is principally made out of his own substance and on whom he hath bestowed nourishment and education for
Power but when they exceed those limits they cease to Act as true Superiors or Governors and therefore when instead of Husbands or Fathers they prove Destroyers of their Families I doubt not but they may then be lawfully resisted by them For suppose such a Father of a Family should in a furious or drunken fit go about to kill his Wife or one of his innocent Children can any body think this was Treason against the Monarch of the Family if his Wife or one of his Sons should rescue her self or this innocent Child out of his hands by force if they could not otherwise quiet him M. This supposition of Madness or Drunkenness in Fathers of Families you Gentlemen of Commonwealth Principles make great use of to justify your Doctrin of Resistance and I know no reason why you might not extend it as well to Anger Lust or any other Passion that a man is subject to and have given all the World a power to Judg when a man is Drunk or mad as well as his Wife Children or Servants nor do I know why you so much insist upon it but because the Authors from whence you had it are so in love with Rebellion and Disorder that they seek and catch at every opportunity to recommend it to the World But I believe had you a Wife Child or Servant that should take the liberty of controling you upon this pretence you would be more enraged with the Reason of the Resistance than with the Resistance it self F. I am sorry Sir any thing I have said can so far transport you to passion as to make such unkind Reflections upon your Friends but pray be not so hot is it not possible that a Master or Father in the State of Nature may be mad or drunk M. Yes And is it not possible also that the Wife may be so too Now suppose they should mutually charge each other with madness or drinking too much who shall Judg betwixt them â— What horrible confusion must this introduce into all Societies to give inferiors a power to Judg their Superiors to be mad or drunk and thereupon to resist and oppose them with force But if it doth at any time happen Wives Children and Servants that are dutiful may have ways to appease their Husbands Fathers or Masters when mad or drunk without resisting or Fighting them as by getting out of the way or by submission Prayers and Tears which Nature hath taught them on such occasions to make use of and which is a thousand times a better method than those violent Courses you propose F. All I desire of you in this Conversation is that you would be pleased to believe I do not Argue out of any love to Rebellion or Disorder or that I desire to encourage it in private Families much less to recommend it to the World only what I speak is purely out of a desire of the happiness and preservation of Mankind and I hope I say no more than what all sober men will allow may be every day practised in private Families and therefore since you will needs have it I do extend this Power of Resistance not only to Madness or Drunkenness alone but even to Anger Lust or any other Exorbitant Passion a man can be subject to and I do likewise give all the World a power to Judg when such a man is mad or furiously passionate as well as his Wife Servants or Children if in those drunken or mad fits he goeth about to kill them or any else For I think in that case you will not deny but any honest Neighbour may step in and bind him or hold his hands and so may likewise the Wife or Children themselves As suppose this Father or Husband should be so far Transported with passion or lust as to go about to kill his Wife or ravish his Daughter I hope you will not deny but they may lawfully resist him if they can neither run away nor yet pacify him by submission prayers or tears which I grant are much better methods if they may prevail But what if they can neither get away nor yet any of those gentle means you propose can work any good upon him what shall they do then Can any one believe that God hath appointed an innocent Wife or Children to be made a Sacrifice to the madness drunkenness passion or lust of such a Father or Husband And as for the Case you put Where the Husband or Wife should charge each other with madness or drinking too much who should judg between them it is a meer Cavil for as long as they only fall out and only brangle it is no matter whether there be any Judg or not But if it proceeds to blows and they are like to mischif or kill each other no doubt but the Children or Neighbours may come in and part them and may either hold or shut up one or both of them till they are sober M. Pray Sir let us leave this touchy Discourse concerning Self-defence till anon when we shall have occasion to fall more naturally upon it Suppose then I should at present grant you That a Wise or Children may in case of such Extremities as may happen to them by the madness or Drunkenness of the Husband or Father restrain or resist his violence in case no other means can prevail what is this to disobeying his Commands or resisting him when he is sober Which certainly they have no right to do But to come as near you as possible I can and to let you see I am not a man of a domineering temper and who approves of unnecessary Severities or unnatural Rigours either in Masters of Families Husbands or Fathers I grant that no Father or Master of a Family has any right to punish or put to death the meanest of his Slaves much less his Children without a sufficient cause or that he may sell his Children or otherwise Tyrannize over them by cruel usage or too severe punishments since they are not only part of his own Substance and to whom by the order of the Creation he gave a being but was also as you well observe ordained by God for their happiness and preservation as they were also as well as his Wife for his constant help comfort and subsistence and therefore they were as much or more made for him as he for them as it is plain concerning the Wife from the Text in Genesis when God said It is not good that the man should be alone I will make him a help meet for him Gen. 2.17 viz. the Woman and therefore as her subjection to her Husband is perpetual as long as she lives so likewise is that of the Children in whom he acquireth a Property by their Education for so many years which I look upon as a greater obligation than their Generation and over both whom he must in the State of Nature have an absolute power of life and death which though I grant he may
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
make a part of that great aggregate body of mankind they are in all points equal to them that is as the Parents have a right to Life Happiness and Self-preservation so have they likewise and consequentially to all necessary means thereunto such as Food Cloaths Liberty I mean from being used as Slaves which Principles if true will likewise serve for a farther proof against that absolute Property and Dominion you supposed to be conferred on Adam over the Earth and all things therein exclusive to that of his Wife and Children For if they had a right to a Being and Self-preservation whether he would or not so had they likewise to all the means necessary thereunto and he was not only obliged to provide Food and Raiment for his Children whilst they were unable to do it for themselves but also when they grew up to Years of Discretion they might take it without his assignment and this by Virtue of that Grant in Genesis I before quoted And God said Gen. 1. viz. to the Man and the Woman and in them to all mankind then in their Loins Behold I have given you every herb bearing seed which is upon the face of the Earth c. Behold to you it shall be for meat So that sure you were too rash in affirming with Sir R. F. That a Son a Slave and a Servant were all one at the first For I hope I have proved the Father doth not acquire any absolute Property in the person of the Son either by his begetting him or bringing him up for then I grant a Son and a Slave would be all one But if you please better to consider it you will find that Fathers were never ordained by God for perpetual Lords and Masters over their Children but rather as Tutors and Guardians till they are of Years of Discretion and able to shift for themselves God having designed the Father to beget and bring up his Child nor for his own interest or advantage only but rather for the Child's happiness and preservation which by the Laws of God and Nature he is bound to procure For as it is the Son's Duty never to do any Action that may make his Father repent his begetting or bringing him up so on the other side the Father ought not to Treat his Son so severely as to make him weaay of his Family much less of his Life It is the Apostle's Precept Ephes. 6.4 Parents provoke not your Children to wrath which certainly he knew they were apt to do or else that precept had been needless Now pray tell me if Adam had used one of his Sons whom he loved worse than the rest so cruelly as to make him a Slave instead of a Son and when grown a Man should have put him to all the servile and hard labour imaginable with scarce Victuals enough to live upon or Cloaths to cover him What must this Son have done Born all patiently Or else do you think it had been a damnable sin if he had fled into the Land of Nod to Cain his elder Brother M. To answer your Question I think in the first place it had for I do not only take Cain to have been the first Murderer but Rebel too and in the next place this Question is needless for it can scarce be supposed that ever Adam or any Father can be so wicked and ill-natur'd as to use a Son thus cruelly without some just occasion but if he had I think he ought to have endured any thing from his Father rather than have left him without his leave since I cannot see how Children can ever set themselves free from their Father's Power whether they will or no. F. If that be the condition of Children they are then instead of Sons as absolute Slaves as any in Turkey whenever their Father pleases But you have already granted that Fathers ought not to use their Children like Slaves nor to sell them for such to others And tho I have no great kindness for Cain yet I know not what warrant you have to call him Rebel I am sure neither the Scripture nor Iosephus mention his going to the Land of Nod as an offence committed against his King and Father Adam but rather as a piece of compliance or obedience to God's Sentence who had made it part of his Curse so to do M. I shall not much trouble my self whether Cain was a Rebel or not I only tell you what some Learned men have thought of his quitting his Country but as for other Children tho I grant their Fathers ought not to use them like Slaves yet if they should happen to do so I think such Children ought to bear it as a Judgment inflicted by God for their Sins and should not by any means set themselves free tho their Fathers use them never so severely since it is God's will they should be Born and continue under the power of such severe Fathers F. But pray Sir tell me what if this Son had fallen into the power of a Stranger who would thus make a Slave of him Was he likewise bound to bear this as a punishment from God for his Sins and might he by no means set himself free Since this could not happen without God's permissive Providence at least and I think you will sâ—arce prove it more in the Case of the Father unless you will allow God to be the Author of Tyranny and Oppression M. I Grant that a Man that is made a Slave to a Stranger by force without just cause given by him may set himself free by what means he can But I deny he hath the same Liberty in respect of his Father since the Father's power over him is from God and so is not the Stranger 's F. What power of the Father do you mean That of making his Son a Slave or of using him as a Father ought to use a Son The latter of these I very well understand to be from God but not the former And if the Father hath no such power from God I cannot see how it can be any Act of disobedience in a Son to look to his own Liberty and Preservation since Cruelty and Tyranny can never be Prerogatives of Paternal Power as you your self confess M. I grant indeed a Father hath no such Power from God to treat his Son thus cruelly but if he does I say again That God having ordained the Son to be absolutely subject to his Father he must endure it let the consequence of it be what it will And I suppose you will not deny but that in case of necessity as when a Father hath not wherewithal to nourish and breed up his Children he may sell or assign his interest in them to any person who will undertake to provide for their Nourishment and Education and that the Children so sold or assigned do thereby become absolute Servants to the person to whom they were thus assigned as long as they lived and why this should be
their condition in respect of a Stranger and not so to their Father I can see no Reason since their Father would have been at as much trouble and charge for their Education as the Stranger F. I so far go along with you that in case of such necessity as you mention a Father may sell or assign the present interest in his Child to a Stranger yet I cannot see any Reason that this Sale or Assignment should confer so absolute a Property in the Person of this Child as that therefore he should be a Slave to this Master or Fosterer as long as he lived since admitting that the Father or other person who takes upon him that Care may perhaps justly claim a Right in the Service or Labour of the Child to satisfy them for their trouble and charge in bringing him up yet it doth not therefore follow that this Service is due as long as the Child lives but rather until such time as they can make their Labour satisfy them for their Charge and Trouble in keeping him which may very well be by that time the Child attains to Twenty five years of Age at farthest and there are those that have offered to breed up and maintain all the Foundlings and Bastard Children in England if they may be bound to serve them until about that Age so that I see no reason why a few years of Education should give any Man a right over another's person as long as he lived But if you urge that the Child owed his Life to his Father or Fosterer since without his assistance he must have perished and therefore the Service of the Child 's whole Life is but little enough to recompence it To this I Answer That the Parents are under an absolute Obligation by the Laws of God and Nature to breed up their Child and they sin if they do not perform it as they ought the end of a Father being chiefly for the Breeding up and preservation of the Child and therefore there is no Reason he should acquire such a property in him merely because he did his Duty And the Duty of a Father being to better the condition of his Son and not to make it worse I doubt whether an absolute and perpetual Servitude or Death it self were the better bargain and if this Right will not hold for the Father himself much less will it be for a Fosterer since he is likewise obliged by the Laws of Nature and common Humanity as well as by his Contract with the Father to breed up this Child so assigned him and not to let him perish if he be able to breed him up Nor ought this Father's or Fosterer's temporal advantage which he may make of this Child to be the principal end of his undertaking but the doing good to mankind and the advantage he may reap thereby is to be considered only as an encouragement and not as the only motive to this Duty since he is Obliged to do the same thing tho he were sure the Child would either dye or be taken away from him before he could be with him half long enough to satisfy him for his Charge Neither doth this reason hold true even according to the Scripture Rules of gratitude That a Man hath a right to exact of one to whom he hath done a Courtesy or bestowed a Benefit a return as great as the benefit bestowed since this were not Beneficence but meer Bartering or Exchange and a Man who had his Life saved by another's assistance suppose by pulling him out of the Water must be obliged by this Principle to submit his Life to his disposal ever after And therefore I desire you would give me some better Reasons why such a Son ought to be so absolutely subject to his Father's Power as that it is not lawful for him upon any account whatsoever to free himself from it let his Father use him never so cruelly or severely M. Well Sir since you desire it I will give you the best Reasons I have why God cannot permit so unreasonable a Liberty as this would give to all Children in case they should make use of it whenever they thought fit and therefore God hath ordained it thus to take away all those pretences of undutifulness and disobedience which Children might make should they be permitted to be their own Judges when they might quit their Father's Family without his leave which pretence of cruel usage they would be sure to make use of thereby to leave their Parents upon every slight occasion saying That their Fathers were so cruel and severe that there was no living with them any longer when indeed it was not so but on the contrary no just cause of complaint against them more than bare correcting them for their Faults and so the Father be Berest of any nay all his Children who should be helpful and serviceable to him in his old Age which would breed great confusion and inconveniences in Families especially in the State of Nature as in the Case you have put concerning Adam's Sons they being the only Servants he could have to make use of on all occasions F. I desire you in the first place to take notice That I put this Case concerning Adam by way of supposition only not but that I have a better opinion of our first Parent notwithstanding his Fall than to believe him so ill-nattur'd or that he was ever so cruel as to use his Children thus hardly But in this depraved state of Nature such unnatural Rigours and Cruelties in Fathers as well as Disobedience in Children is but too frequent which no man needs to doubt of that will but consult the Custom of divers Nations in Africa and other Countries at this day where they sell their Sons for Slaves and exercise this Fatherly Power with the greatest Tyranny and Rigor using them as Slaves or felling them to others for such things as they want And if you think it against the Law of Nature for such Children when they see themselves ready to be sold to work in the Mines in Peru or Sugar-works at Barbadoes to run away into another Countrâ—y to avoid such a Condition which is as bad or worse than death you may enjoy your own opinion but I am sure you 'l have but fâ—w Proselites but such as are of the like Arbitrary Principles and as for your Pretence that if Children should be allowed to judge when their Fathers treated them too severely or like Slaves they would all run away that is but a Subterfuge For first it is a needless Caution Children being when young not apt to leave their Parents who have bred them up â—pon whom they depend for their subsistence and to whom if they are treated like Children they seldom faâ—l to bear a natural Duty and Affection and if well used they will when of years of discretion be likewise willing to stay with them and look after them when Sick or Old not only for Duty but
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
his Death but should have his Portion presently and be gone And Farther we read Gen. 25.5 6. That Abraham gave all that he had unto Isaac but unto the Sons of the Concubines which Abraham had Abraham gave Gifts and sent them away from Isaac his Son while he yet lived that is Abraham having given Portions to all his other Sons and sent them away that which he had reserved being the greatest part of his Substance Isaac as Heir possessed after his Death but by being Heir he had no Right to be Lord over his Brethren For if he had why should Sarah desire to rob him of one of his Subjects or Slaves by desiring to have him sent away So likewise if you look into the first of Chron. chap. 5. v. 12. you will find a place that plainly confirms this Interpretation where it is said Reuben was the First-born but for as much as he defiled his Fathers Bed his Birth-right was given unto the Sons of Joseph the Son of Israel and the Genealogy is not to be reckoned after the Birth-right for Judah prevailed above his Brethren and of him came the Chief Ruler but the Birth-right was Joseph's tho' he was the Youngest Son and that this Birth right was Iacob's Blessing on Ioseph Gen. 58.28 tells us in these words Moreover I have given thee one Portion above thy Brethren which I took out of the hand of the Amorites with my Sword ' and with my Bow Whereby it is not only plain that the Birth-right was nothing but a double Portion but the Text in Chronicles is expresly against your Opinion and shews that Dominion was no part of the Birth-right for it tells us That Joseph had the Birth-right but Judah the Dominion So that unless you were very fond of this word Birth-right without considering in what sense it is to be taken you would never bring this Instance of Iacob and Esau to prove that Dominion belongs to the Eldest Son over his Brethren For if this Blessing of Isaac upon Iacob signifies any thing more than this it could not relate to his own Person who never Ruled over his Brother at all and therefore it is at most no more than a Prophecy shewing that the Jews as being descended from Iacob should in after-times Rule over the Edomites or Posterity of Esau according to what Rebekah had been foretold from God Two Nations are in thy Womb and two manner of People shall be separated from thy Bowels and the one People shaâ—l be stronger than the other People and the Elder shall serve the Younger And so Iacob blessed Iudah and gave him tho' not in his own Person but in his Posterity the Scepter and Dominion From whence you might have argued as well that the Dominion belonged to the Third Son over his Brethren as well as from this Blessing of Isaac that it belonged to Iacob they being both but Predictions of what should long after happen to their Posterities and not declaring any Hereditary Right of Dominion in either Iacob or Iudah M. I will not rigorously insist that Primogeniture is such a Divine Right as cannot be altered by any Humane Act or Constitution but yet I take it to be such a Right that without the Father orders it otherwise in his life-time or that the Elder Brother doth of his own accord depart from his Right he will have a good Title to his Fathers Government or Kingdom and consequently to Command over the rest of his Brethren and therefore Grotius makes a great deal of difference between Hereditary and Patrimonial Kingdoms the former being to descend to the Eldest Son only but the latter are divisible amongst all the Sons if the Father please And hence I suppose it was that as Mankind encreased one petty Kingdom grew out of another Thus the Land of Canaan which was Peopled by six Sons of Canaan and Philistim the Son of Mizraim had eight or nine Kings in the time of Abraham and above thirty Kings in Ioshua's time which could proceed from no other Cause but the Fathers dividing their Kingdoms in their life-times or at their Death amongst their Sons and Descendants for we hear not of one Tittle of Popular Elections in those early days And I have proofs enough of this in Scripture Since thus we find it to have been among the Sons of Ishmael and Esau as appears by Gen. 25 and 26. where it is said These are the Sons of Ishmael and these are their Names by their Castles and Towns c. Twelve Princes of their Tribes and Families And these are the Names of the Dukes that came of Esau according to their Families and their Places by their Nations And hence it is that in after Ages Princes did often divide their Kingdoms amongst their Children of which you may see divers Examples in Grotius de I. B. L. II Cap. 7. which Divisions when made and submitted to by the Eldest Son I doubt not but were good Yet I think it cannot be denied for all this that by the Law of Nature or Nations where there is no Will of the Father declared to the contrary the Eldest Son ought to inherit And this is the Judgment not only of Christian but Heathen Writers Thus Herodotus the most Antient Greek Historian lays it down for a general Custom of all People or Nations that the Eldest Son should enjoy the Empire and the Romans were likewise of this Opinion and therefore Livy when he speaks of two Brothers of the Allâ—broges contending for the Kingdom says The Younger was more strong in Force than Right And in another place he calls this Right of the Eldest Son the Right of Age and Nature as also doth Trogus Pompaeius in his Epitome of Iustine when he calls it the Right of Nations and in another place a Right of Nature when he says that Artabazanes the Eldest Son of the King of Persia challenged the Kingdom himself which the Order of his Birth and Nature it self appointed amongst Nations I could give you many other Authorities from more Modern Authors but I rather chuse to give you these because you cannot except against them as Writers prepossest by either Jewish or Christian Principles So that if this Right of Primogeniture be not absolutely Divine yet it is at least most Natural and Reasonable F. I see you are convinced that this Divine Right of Primogeniture is not to be proved out of Scripture and therefore you are contented to fall a Peg lower and to take up with the Right of Eldership by the Law of Nature or Nations which howsoever you are pleased to confound them are for all that two distinct things for if the Succession of the Eldest Son were by the Law of Nature it were no more to be altered by the Will of a Father than the Law of God it self and therefore notwithstanding all your Quotations your Right of Primogeniture amounts to no more than this
not only Kingly Power in General but also the succession to it by the Eldest Son or his next Brother is of Divine Right or Institution or else all that you urged concerning the Natural right of Dominion of Cain over Abel was to no purpose But now you insist that succession by a Testament or Will of the Father is also as much by the Law of Nature as the other in which I think you are very much mistaken since the right of bequeathing Kingdoms or any thing else by Testament is neither prescribed by the Revealed Will of God nor the Laws of Nature since all setled Property in Lands or Goods before the institution of a Civil Government proceeding only from occupancy or possession must cease in the State of Nature with the life of the occupant or possessor Therefore in that state a Testament cannot take place by the Testators Death since as soon as he Dyeth his right in the thing bequeathed is quite lost and extinguished so that the Dead not having an interest in any thing the Legatee cannot sustain the person of the Testator whose Right ceases before that of the Legate can take place And therefore the Testament or Disposition of such things may then without any Crime be neglected or altered by the Survivors unless all those who pretend an interest in it do agree to it or swear to see it fulfilled during the Testators Life time And for this cause we find Abraham binding his Servant that ruled over his House with an Oath not to take a Wife for his Son of the Daughters of the Land And Iacob taking an Oath of Ioseph not to bury him in Egypt because they doubted whether they could oblige their Sons or Servants to do it by their Testaments So that it appears evident to me that the Power of making Testaments and bequeathing Lands or Goods is but a consequence of that Propriety in Lands Goods or Dominions which arises from compact or common consent in a Kingdom or Common-wealth after it is instituted as I think I am able to prove whenever you please to discourse with me farther about it But as for the Right of bequeathing Crowns or Kingdoms by Testament as I will not deny but that some Kingdoms may have been bequeathable by their Original Constitution and others become so by Custom yet I cannot grant that this Right belonged to the Prince or Monarch by the Laws of God or Nature but proceeded pâ—rely from the received Law or continued Custom of that Kingdom so that you must either confess that there is no such thing as a Divine Right of Succession or else it is such a one as signifies as much as nothing since humane Laws or Constitutions can alter it or take it away So that after all this Pother about this Divine Right it is not so good as an old Estate Tayle which formerly no fine could bar And I must farther tell you that I cannot assent to your opinion that succession by a Will or a Testament is so certain as that by Inheritance since all such Testaments must depend upon the Credit of the Witnesses whose Credit may often be questioned by the Subjects and who may very well for their own ends make a Younger Son to have the whole or at least a share in the Kingdom to whom his Father never intended any and which was likewise more easie to be done before such time as Written Wills or Testaments solemnly published according to forms of Law came in use But because you suppose that the Natural Laws of Succession to Kingdoms are so plain and certain that I may a little convince you of your mistake in this matter I shall for the present suppose that the Succession of an Elder Son or Brother is sufficiently easie to be known Yet I doubt it will not prove so in many other Instances And therefore to let you see I do not make this Scruple without cause suppose Abel for example to have left a Son or a Daughter behind him when his Brother murdered him pray tell me who was to succeed after the Death of Adam this Son or Daughter of Abel or Seth their Uncle M. We do not read of any Children that Abel had and therefore I cannot tell what to say to it F. Well but since it is probable he might have had Children pray tell me supposing he had whether this Child were it Son or Daughter or Seth the Uncle was to succeed M. Since you will needs have me speak my opinion in a thing so uncertain I think this Child were it Son or Daughter ought to have succeeded before the Uncle F. Pray Sir tell me by what Law or Rule you thus Judge Whether by the Law of God or Nature M. I must confess God hath prescribed nothing expresly concerning it more than what he says Numb 27. that if a man dies leaving no Sons ye shall cause his Inheritance to pass unto his Daughter with diverse other Rules of Succession to Inheritances there specified and besides it is more suitable to the Laws of Nature that the Children of the Elder Brother should inherit before their Uncle there being no reason that they should be punished for their Misfortune in having their Father Dye before he could succeed to the Government F. I doubt the place of Scripture you have cited doth not reach this Case of Kingdoms for first this being a Municipal Law of the Iews could only concern that Common-Wealth and secondly it only relates to Private Inheritances and that this is so may be proved from the next verse where it is said that a Mans Brethren shall be his Heirs that is all of them were to be Heirs alike only the Eldest was to have a double portion And if this Law concerning Daughters were to reach the Succession of Kingdoms at this day the Laws of France and other Countries where Women are barred from succeeding to the Crown would be against the Laws of God and Nature And the like may also be said concerning the Succession of the Nephews before their Uncles or of Uncles rather than the Nephews whose Fathers never injoyed the Crown diverse Nations having different Customs and that with a like appearance of reason concerning it For on the one hand if the Son of Abel might have pleaded that he was the first born of the Eldest Son of Adam and so ought to represent his Father Seth the Uncle might likewise with as good reason urge that he was more nearly related in Bloud to Adam as being his Son than the Son of Abel who was but his Grandson and besides being older than he was endued with more Wisdom and Experience and consequently was â—itter to Govern But if Abel left only one Daughter or more I doubt not but the question would have been harder to be decided since if Women are not permitted to Govern in Private Families they will not especially amongst Warlike Nations be admitted to Govern Kingdoms especially since
it would be left in her Power not only to govern her self but by marrying to chuse a King for her Subjects whom they do not approve of And therefore we read that in diverse of the Antient Kingdoms of the World Women were excluded from the Succession Nor are these the only questions that either might then or else have in latter Ages been started concerning Succession in Kingdoms and Principalities and have been the cause of great disputes between Pretenders to Crowns where a King Dies without Lawful Issue as whether a Grandson by a Younger Daughter shall inherit before a Grand-daughter by an Elder Daughter Whether the Elder Son by a Concubine before the Younger Son by a Wife From whence also will arise many Questions concerning Legitimation and what by the Laws of Nature is the difference betwixt a Wife and a Concubine All which can no ways be decided but by the Municipal or Positive Laws of those Kingdoms or Principalities It may further be enquired whether the eldest Son being a Fool or Madman shall inherit this Paternal Power before the Younger a Wise Man And what degree of â—olly or madness it must be that shall exclude him and who shall be the Judges of it Also whether the Son of a Fool so excluded for his Folly shall succeed before the Son of his Wiser Brother who last Reigned Who shall have the regal Power whilst a Widdow Queen is with Child by the Deceased King until she be brought to Bed These and many more such difficulties might be proposed about the Title of Succession and the Right of Inheritance to Kingdoms and that not as idle speculations but such as in History we shall frequently find examples of not only in our own but likewise other Kingdoms From all which we may gather that if the Laws of God or Nature had prescribed any set rules of Succession they would have gone farther than one or two cases as concerning the Succession of Elder Sons or Brothers where an Elder Son dies without Issue and would also have given certain infallible rules in all other Cases of Succession besides these and not have left it to the Will or particular Laws of diverse Nations to have established the succession so many several ways as I am able to shew have been practised in the World M. I must confess you have taken a great deal of pains to perplex the Succession to Adam which seems designed for nothing else but to make me believe that if Adam or any of his Sons were Kings or Princes it must have been by the Consent or Election of their Children or Descendants which is all one as to say that those Antient Princes derived their Titles from the Iudgment or Consent of the People the contrary to which is evident as well out of Sacred as Civil History F. Since you appeal to History to History you shall go and to let you see that I have not invented these doubts about Succession of my own Head and that there might have very well been a real dispute about the Succession to Adam in the Cases I have put may appear by the many disputes and quarrels that have been in several Nations concerning the Right of Succession between the Uncle and the Nephew of which Grotius is so sensible that he confesses in the latter end of the Chapter last cited that where it could not be decided by the Peoples Iudgment it was fain to be so by Civil Wars as well as private Combats and therefore he is forced ingenuously to confess that this hath been practised divers ways according to the different Laws and Customs of Nations and he gives us here a distinction between a direct Lineal Succession and a transversed and acknowledges that amongst the Germans as also the Goths and Vandales Nephews were not admitted to the Succession of the Crown before their Uncles the like may be said of the Saxons and Normans and therefore we find in our Antient English History that before the Conquest the Uncle if he were Older always enjoyed the Crown before the Nephew which I can more particularly shew you if you think fit to question it The like manner of succession was also amongst the Irish-Scotch for above 200 years after â—â—rgus their first King The like Custom was also observed among the Irish as long as they had any Kings amongst them and is called the Law of Tanistry The same was also observed in the Kingdom of â—astile where after the death of Alphonso the fifth the States of that Kingdom admitted his Younger Son Sancho to be King putting by Ferdinand de la Cerda the Grand-Son to the late King by his Eldest Son tho' he had the Crown left him by his Grand-Father's Will So likewise in Sicily upon the Death of Charles the Second who left a Grand Son behind him by his Eldest Son as also a Younger Son named Robert between whom a difference arising concerning the Succession it being referred to Pope Clement V. He gave Judgment for Robert the Younger Son of Charles who was thereupon Crowned King of Sicily and for this reason it was that Earl Iohn Brother to King Richard the second was declared King of England by the Estates before Arthur Earl of Brittain Son of Ieoffrey the Elder Brother and Glanvil who was Lord Chief Justice under Henry the second in that little Treatise we have of his makes it a great question who should be preferred to an Inheritance the Uncle or Nephew But as for Daughters whether they shall inherit at all or not or at least be preferred before their Uncles is much more doubtfull since not only France but most of the Kingdoms of the East at this day from Turkey to Iapan do exclude Women from the Throne And it was likewise as much against the Grain of the Antient Northern Nations and hence it is that we find no mention of any Queen to have reigned amongst the Antient Germans or Irish-Scots and never but two among the English-Saxons and those by Murder or Usurpation and not by Election as they ought to have done And upon this Ground it was that the Nobility and People of England put by Maud the Emperess and preferred Stephen Earl of Blois to the Crown before her for tho' he derived his affinity to the Crown by a Woman yet as being a Man he thought himself to be preferred before her So likewise in the Kingdom of Aragon Mariana in his History tells us that Antiently the Brother of the King was to inherit before the Daughter examples may also be given of divers of the other instances but these may suffice M. I Pray give me leave to interrupt you a little for by these examples you would seem to infer that these Laws about setling the succession of Crowns in several Kingdoms depended upon the Will of the People whereas I may with better reason suppose that if such Laws and Alterations have been in such successions they were made by
usurped by any other so that any other man can become my Father or I owe him that Filial Duty and Respect as to him that begot me and brought me up And tho' I grant that God may confer a Regal Power on whom he pleases either by his express Will or the ordinary course of his Providence yet when such a person who was not a King before doth become so I utterly deny that the Power he hath then conferred upon him is a Paternal Power in relation to his Subjects which is evident from your own Instance of Saul's becoming a King over his Father Kish For tho' you say that God then conferred a Fatherly Power on Saul over his own Father this is a great mistake For then Saul would have been immediately discharged from all the Duties of Piety and Gratitude which he owed his Father and they were all transferred from Kish to Saul so that after he became King he might have treated his Father with no more Respect or Deference than any other Subject which is contrary to God's Commandment that bids all Men Honour their Father and Mother And I know not how Kings can be excepted out of this Precept So that your mistake arises from this preposterous confounding of Paternal Authority with Regal Power And because Adam Noah or any other Father of a separate Family may be a Prince over it in the State of Nature that therefore every Monarch in the World is also endued with this Paternal Power Which that they are distinct may farther appear from your own supposed Monarchical Power of Adam who tho' granting him to have been a Prince over his Posterity yet did not this discharge any of his Descendants from their Duty and Obedience to their own Father And tho' I confess you talked at our last meeting of a Fatherly Power to be exercised in subordination to the Supreme Fatherly Power of Adam yet this is a meer Chimera for Filial Honour and Obedience being due by the Commandment only to a Man 's own Natural Father can never be due to two different persons at once since they may command contradictory things and then the Commandment of Honour that is obey thy Father cannot be observed in respect of both of them and therefore granting Adam or Noah to have exercised a Monarchical Power over their Children and Descendants it could not be as they were Fathers or Grand-fathers when their Sons or Grand-children were separated from them and were Heads of Families of their own for the reasons already given so that if they were Princes in their own Families whilst their Sons or Grand-children continued part of them it was only as Heads or Masters of their own Families but not by any such Patriarchal or Paternal Authority as you suppose But as for the Conclusion of your Discourse it being all built upon this false Foundation that all Power on Earth is derived or usurped from the Fatherly Power I need say no more to it For if that be false all that you argue from thence concerning the subordination of all other Powers to this will signifie nothing M. I think I can yet make out my Hypothesis notwithstanding all you have said against it For tho' I grant the Paternal Relation it self can never be usurped or transferred yet you may remember I at first affirmed that Adam was not only a Father but a King and Lord over his Family and a Son a Subject a Servant or a Slave were one and the same thing at first and the Father had power to dispose of sell or Alien his Children to any other whence we find the Sale and Gift of Children to have been much in use in the beginning of the World when Men had their Servants for a Possession and an Inheritance as well as other goods whereupon we find the Power of Castrating or making Eunuchs much in use in old times And as the Power of the Father may be lawfully transferred or aliened so it may be unjustly usurped And tho' I confess no Father or Master of a Family ought to use his Children thus Cruelly and Severely and that he sins mortally if he doth so yet neither they nor any Power under Heaven can call such an Independant Father or Monarch to an account or punish him for so doing F. I am glad at last we are come to an Issue of this doughty controversie and tho I forced you at our last meeting to confess that Fatherly Power was not despotical nor that Fathers upon any account Whatsoever were absolute Lords over their Children and all their Descendants in the State of Nature Yet now I see to preserve your Hypothesis You are fain to recur to this Despotical Power of Fathers in the State of Nature Because without supposing it and that it may be transferred or usurped Princes at this day whom without any cause you suppose to be endued with this Paternal Despotick Power could never claim any Title to their Subjects Allegiance And then much good may do you with your and Sr. R F's excellent discovery For if as you your self acknowledge Princes are no longer related in Blood to their Subjects any nearer than as we all proceed from Adam our Common Ancestor that relation being now so remote signifies little or nothing so that the true Paternal Authority being lost as you confess the Despotick Power of a Lord over his Servants or his Slaves only remains since therefore you make no difference in Nature between Subjects and Slaves then all Subjects Lye at the mercy of their Kings to be treated in all things like Slaves when ever they please And they may exercise an absolute Despotick Power over their Lives and Estates as they think fit So that I can see nothing that can hinder them from selling their Subjects or castrating them as the King of Mingrâ—lia doth his Subjects at this day and as the Great Turk and Persian Monarchs do use those Christian Children whom they take away from their Parents to make Eunuchs for their Sâ—raglio's and then I think you have brought Mankind to a very fine pass to be all created for the Will and Lust of so many single Men which if it ever could be the Ordinance of God I leave it to your self to judge M. I was prepared for this objection before and therefore I think it will make nothing against this Absolute Power with which I suppose God to have endued Adam and all other Monarchs at the first So that I am so far from thinking that this Doctrine will teach Princes Cruelty towards their Subjects that on the contrary nothing can better inculcate their Duty towards them For as God is the Author of a Paternal Monarchy so he is the Author of no other He introduced all but the first Man into the World under the Subjection of a Supream Father and by so doing hath shewn that he never intended there should be any other Power in the World and whatever Authority shall be
no Exorbitant heighth I think I am able to prove from many passages in his Patriarcha as well as other Works that no Author hath made bolder Assertions to render all Mankind Slaves instead of Subjects and all Princes Tyrants instead of Kings and that his Principles are so far from being safe that if they are duly lookt into and weighed they will prove destructive as well to the Rights of Princes as to the Liberties of the People M. I should be very glad to see that proved for I must always believe till you shew me to the contrary that this Excellent Author lays it down for a Ground that Princes being as Fathers to their People are bound to treat their Subjects as Children and not as Slaves and therefore waving this last Controversie which we have argued as far as it will go pray make out what you say from his own words and I will give up the Cause F. I wonder how you can be so partially blind as not to see this since you your self have already made use not only of a great deal of his Doctrins but also of his very words And therefore pray see his Obedience to Government in doubtful times as also in his Preface to the Observations upon Aristotle's Politicks where you will find he asserts That Adam was the Father King and Lord over his Family a Son a Subject and a Servant or a Slave were one and the same thing at first The Father had power to dispose of or sell his Children or Servants Whence we find that at the first reckoning of Goods in Scripture the Man-servant and the Maid-servant are number'd among the Possessions and Substance of the Owner as other Goods were So that then if the Power of a Father and of a Monarch be all one and that all Monarchical Power is Despotical the Consequence is also as evident that all Subjects are also naturally Slaves unless their Princes shall please to lay an easier Yoke upon them M. Perhaps Sir R. F. may have carried this matter a little too far yet if you please to look into his Patriarcha Chap. 3. Par. 1. you will find that he hath this passage which plainly speaks the contrary The Father of a Family Governs by no other Law than by his own Will not by the Laws and Wills of his Sons and Servants There is no Nation that allows Children any Action or Remedy for being unjustly Governed and yet for all this every Father is bound by the Law of Nature to do his best for the preservation of his Family but much more is a King always tyed by the same Law of Nature to keep this general Ground That the Safety of his Kingdom be his Chief Law Whence you may observe that tho' he takes away all Remedy from Children against their Parents for being ill Governed yet doth he not set the Father free from all Obligation to preserve the Good of his Family of which sure a Man's Children are a principal part And if you please to look back to the second Chapter Par. 3. you will find these words To answer in particular to the first Text it may be said the sense of these words By the Law of Nature all Men are born free must needs mean a Freedom only that is opposite to such a Subjection as is between Father and Son This is made manifest by the Text of the Law For Ulpian in this place speaketh only of Manumission which is a setting at Liberty of Servants from Servitude and not of Emancipation which is the freeing of Children from the Fathers Tuition Servitude as the Law teacheth is a Constitution of the Law of Nations by which a Man is subject to the Dominion of any other Man against Nature So not every Subjection is Servitude but Subjection contrary to the Law of Nature Yet every Man is born subject to the Power of a Father This the Law it self saith In Potestate nostra Liberi nostri sunt So that you see here be maketh a difference between Servitude and that Subjection that is due to Fathers F. Give me leave to answer these two Instances before you proceed any farther and I shall in the first place make bold to answer your last Instance first because I shall be much shorter upon it But pray take notice by the way that this Author is very high and rigorous for the Absolute Power of Life and Death in all Fathers over their Children in the State of Nature and that they may exercise it for very slight Offences and therefore in this Chapter you have last quoted he seems very well satisfied with the Example of Cassius who threw his Son out of the Consistory for publishing the Agrarian Law for the Division of Lands and I think this was no such great Crime for which a Father might justifie the putting his Son to Death And in the Section before this he justifieth the Power of Fathers amongst the Romans as being ratified and amplified by the Laws of the XII Tables enabling Parents to sell their Children two or three times over So that these things considered I cannot see how this Distinction of Sir R. F. out of the Civil Law will do him any service For tho' I grant indeed that Manumission and Emancipation are two different words yet do they both signifie the same thing and tho' for the greater respect which they would shew to the Condition of Children above that of Slaves they were pleased to make use of different expressions yet whoever will look more closely into the Nature of the Subjection that Children were in under their Parents by the Roman Law will find that the Condition of Children was no better than that of Slaves For First The Father had such an Absolute Power over the Person of the Son that he could sell him three times whereas he could sell a Slave but once Secondly He had such an Absolute Power over his Life that he could take it away whenever he pleased Lastly A Son could have no Property in any Goods without his Fathers Consent till he was emancipated or made free So that if his Father were harsh and ill natured the Condition of a Son was worse than that of a Slave as long as his Father lived And therefore I am still of the Opinion of the Antient Civil Lawyers which assert the Natural Freedom of Mankind according to the Maxim you have now cited And they acknowledge that the Servitude or Absolute-Subjection of Children to their Fathers was not by the Law of Nature but by the Civil or Roman Law peculiar to themselves as I have already proved at our last meeting But to come to your first Quotation whereby you would justifie Sir R. F. for maintaining any unjust Severity in Fathers or Tyranny in Princes because they are both to endeavour the Common Good of the Family and Kingdom t is very true he says so but of this Common Good they themselves are the sole Iudges So that if
all Israel saw that the King hearkened not unto them the People answered the King saying What Portion have we in David Neither have we inheritance in the Son of Jesse To your tents O Israel Now see to thine own House David So Israel dâ—parted unto their Tents And it is farther said So Israel rebelled against the House of David unto this day Nor is this action at all blamed or disapproved by the Scripture or rebuked by any Prophet at that time for tho' the Word is here translated they rebelled yet in the Hebrew it signifies no more than fell away from or Revolted and it is said before that the King hearkened not to the People For the 〈◊〉 which may be also translated REVOLUTION was from the Lord that he might perform his saying which he spake by Ahijah thâ— Sâ—ilonite unto Jeroboam when in the Chapter before the Prophet promis'd him the Kingdom of the Tâ—n Tribes and that God would rend them out of the hand of Solomon i. e. his Posterity and give them unto him who thereupon had a Right to them and that upon his being made King by the People he had also a Right to their Obedience is as evident Since to continue in a State of Rebellion towards one King and an Obligation to obey another are absolutely inconsistent in the same Subject as I have already proved at our second Conference And therefore I cannot but here take notice of that rational Account which the Earl of Clarendon in his Survey of the Leviathan which you before quoted gives of this Revolution Nor did the People viz. of Israel conceive themselves liable to those impositions as appears by the Application they made to Rehoboam upon the death of Solomon that he would abate some of that rigour his Father had exercised towards them the rough Rejection of which contrary to the advice of his wisest Counâ—ellours cost him the greatest part of his Dominions and when Rehoboam would by Arms have reduced them to obedience God would not suffer him because he had been in the fault himself M. After this extravagant way of Arguing when ever the Subjects of any Nation shall think themselves too much oppress'd with Taxes or other Grievances above what they are able to bear if they are not eas'd by the King or Supream Magistrates upon the first Petition they may presently cast off that Power they were under and set up another that would govern them upon Cheaper Terms for if the People of Israel had this Right why may not all other Nations claim the same and this Doctrine however comfortable it might be to the People I am sure it would be very Mischievous to all the Monarchies and Commonwealths in the World and it is likely that the Subjects of the French King nay States of Holland and other Princes would quickly take the first opportunity either to make their Princes and States to â—ax them no more than they please themselves or else they may presently cry with the Israelites To thy Tents O Israel nor can I see how the King and Parliament in England would be in a much better Conâ—ition in Relation to the People they represent should they impose greater Taxes than they thought they could afford to pay and this Priviledge you give the Israelites seems to be clean contrary to what you laid down at our last Conference wherein you excepted great Taxes and Tributes to Princes or States as no just Cause of Resistance or taking up Arms And therefore I think I may very well maintain the old Doctrine about this Matter and that tho' God did rend the Kingdom from Rehoboam and bestow it upon the Son of Nebat whom also when the People had made him King they were obliged to obey because it was Gods will it should be so who gives and takes away Kingdoms from whomsoever he pleases Yet doth not this at all justifie the Rebellion of the Israelites or Iereboam's â—suâ—pation of his Masters Kingdom since God oftentimes makes use of this Rebellion of the People to execute his Iudgment upon a sinful Prince and Nation And therefore it is very remarkable that after this Rebellion of the Israelites from the house of David they never prospered but by their Kings still falling one after another into the same Idolatry till God at last was so highly provoked against them that he suffered them to be carried away Captives into a strange Land near two hundred Years before the Tribes of Iudah and Benjamin underwent the same fate for the like Crime F. I hope you will not be in a Passion because I have brought this Instance of the Israelites Defection from Rehoboam as an Example of the Right that Subjects may have in those Cases I have put to resist or cast off those Supream Powers that God had once set over them For I do confess Divines and other Authors are much divided about this Action of the Israelites some maintaining it to be well done and in Pursuance to God's Will and others holding it to be Down-right Rebellion And therefore I shall not positively assert either the one or the other much less that Subjects may rebel whensoever they conceive themselves overtax't but thus much I think I may safely affirm that if the Israelites had no Right upon any score whatsoever to resist I cannot see why Rehoboam might not have made them if he had pleas'd as Arrant Slaves as ever their Ancestors were in Egypt and what he else meant by saying instead of Whips to chastise them with Scorpions which were a sort of thorny rods with which the Iews corrected their Slaves and Malefactors I cannot understand and as for Taxes tho I confess there is no setting any positive measure to them since no man can positively define what the Exigences of a State may require and I think no good Subjects ought to deny to contribute as much as ever they are able to afford to maintain the Government they live under as long as they receive the Protection of it So on the other side should the Supream Power of any Nation where the People are not meer Slaves under the Pretence of laying necessary Taxes for the Maintenance or Preservation of the Government be constantly exacting from the People more than they were able to pay as if for Example they should out of every Mans Estate take Nineteen parts and leave but the Twentieth for the Subsistance of those that own it I do not think in that Case the People were obliged in Conscience to pay it and might in such Case Lawfully resist those Officers that should come to levy it by force M. I could have argued farther against what you have now said concerning this Right of the People of resisting in case of extravagant or intolerable Taxes but since it is not to the Subject in hand I shall refer it to another time And therefore to return where I left off I shall in the next place shew you how sacred
tho' in defence of the greatest Innocence Men who draw their Swords against lawful Powers shall perish with the Sword which doth not signifie what the event shall always be but what is the desert and merit of the Action Rebels may sometimes be prosperous but they always deserve Punishment and if they escape the Sword in this World St. Paul tells us they shall receive Damnation in the next What can be said more expresly against Resistance than this St. Peter never could have drawn his Sword in a better Cause never in the Defence of a more sacred Person If we may defend oppressed Innocence against a lawful Authority if we may oppose unjust and illegal Violence if any obligations of Friendship Gratitude or Religion it self could justifie Resistance St. Peter had not met with this Rebuke But tho' it was a very unjust Action yet it was done by a just Authority and lawful Powers must not be resisted tho' it were in defence of the Saviour of the World and if St. Peter might not use the Sword in defence of Christs Person there is much less pretence to fight for his Religion for tho' some call this fâ—ghting for Religion it is only fighting for themselves Men may keep their Religion if they please in despite of Earthly Powers and therefore no Powers can hurt Religion tho' they may persecute the Professours of it And therefore when Men take up Arms to avoid Perseâ—ution it is not in defence of Religion but of themselves that is to avoid their suffering for Religion And if St. Peter might not fight to preserve Christ himself certainly neither he nor we ought to take up Arms to defend our selves from Persecution Christ was the first Martyr for his own Religion his Person was infinitely more Sacred and inviolable than any one of us can pretend to be And if St. Peter must not fight for Christ certainly we must not fight for our selves tho' we absurdly enough call it fighting for our Religion And who were these Powers St. Peter resisted They were only the Servants and Officers of the High-Priest The High-Priest did not appear there himself much less Pilate much less Caesar and yet our Saviour rebukes St. Peter for resisting the Inferiour Officers tho' they offered the most unjust and illegal Violence It seems he did not understand our modern distinctions between the Person and the Authority of the Prince that tho' his Person be sacred and must not be touched yet his Ministers who act by his Authority may be oppos'd We may fight his Navies and demolish his Garisons and kill his Subjects who fight for him tho' we must not touch his Person But he is a Mock Prince whose Authority is confin'd to his own Person who can do nothing more than what he can do with his two hands which cannot answer the Ends of Government A Prince is not meerly a natural but a Political Person and his Personal Authority reaches as far as his Commission doth His Officers and Ministers of State and Commanders and Soldiers are his Ends and Eyes and Ears and Legs and he who resisteth those who Act by his Commission may as properly be said to resist the personal Authority of the Prince as if he himself were present in his Natural Person as well as by his Authority Thus our Saviour it seems thought when he rebuk'd St. Peter for striking a Servant of the High Priest and smiting off his Ear. F. In Answer to this place which you have now brought to prove that the Resistance that St. Peter would have made on our Saviours behalf was absolutely unlawful I shall not insist as some do that Christ came into the World on purpose to be a Sacrifice for Sin and that therefore it was inconsistent with his design and the Person he undertook to resist and oppose had it been never so lawful to resist tho' our Saviour himself by the Words which St. Iohn relates him to have spoken to St. Peter seems to favour this Interpretation when after he had bid him put his Sword into the Scabbard he adds The Cup which my Father hath given me shall I not drink it and so likewise the answer he gave Pilate who asked him whether he was a King Thou sayest that I am a King to this End was I born and for this Cause came I into the World that I should bear Witness unto the Truth Nor yet shall I go about to interpret these Words For they that take the Sword shall perish by the Sword in that Sense which Grotius puts upon it tho' quite different from yours as if it were not designed as a rebuke to St. Peter but for the encouragement of his Disciples and being indeed a Prophesie that the Iews who now came against him with Swords and Staves should perish by the Sword of the Romans who should be the Avengers of Christs Death but I shall take it in the same sense as you do as a rebuke to St. Peter for going about to resist a Lawful Authority tho' employed upon a very unjust Errand Yet will it not prove that the Supream Powers may not be resisted in any Case or by any Person whatsoever let them use their Power never so Cruelly or Tyrannically against their Subjects I grant indeed it proves what I have never denyed that a private Person tho' Innocent ought not to râ—sist the Civil Officers that come to seize him for a Crime whereof he is accused before a Lawful Authority for this is not only unlawful by the Command of Christ but also by the Law of Nature and Nations For in England it is not only Penal for a Man to resist the Officers of Iustice that come to seize him tho' he be Innocent of the Crime whereof he is accus'd but also to withdraw himself from Iustice by flight And tho' upon Tryal he be found Innocent yet if he fled for the same he shall forfeit all his Goods and that very justly because no Man ought to suspect and withdraw himself from the publick Tryal of the Laws now to apply this to the Case of our Saviour tho' the Action which these Priests and Souldiers came about was in it self unjust Yet was it not so either in respect of these Officers themselves who acted by a Lawful Authority nor yet was it unjust or unlawful in respect of the High Priest and Sanbedrim who sent them For since it belong'd to them alone to Iudge of a Prophet who they supposed taught contrary to the Law of Moses since they did believe our Saviour to be such a Prophet it was in respect of them neither unjust nor unlawful to seize him and bring him before them to give an account of his Doctrine and they might likewise do this either by day or by Night with the help of more or fewer men according as they should think fit since they feared the People might rescue him especially since they look't upon him as one who went
absolute or Tyrannical soever the Power be under which they live that they are safe in God's hands and all the Powers of Men and Devils cannot touch them till God by a positive Decree appoints and orders their sufferings There could not be greater nor more absolute Tyrants than the Roman Emperours were at this time and yet they had no Power over the meanest Christian but by an express Commission from Heaven This is the special Priviledge of the Christian Church above the rest of Mankind that they are God's peculiar Care and Charge that he doth not permit any Sufferings or Persecutions to befall them but what he himself orders and appoints It is a great security to the World that there is no evil happens to men but what God permits and that he permits nothing but what he can over-rule to wise and good Ends but it is a greater happiness to have our Condition immediately allotted by God God may permit a great many evils to befall us in Anger and Displeasure but when he takes us into his immediate Protection and under his own Government whatever evils he appoints for us whoever are the Instruments of them they are certainly for our good And therefore there is no such danger in the Doctrine of Non-Resistance as some Men imagine how absolute soever this may be thought to render Princes sincere Christians can suffer nothing by it for they shall suffer nothing more nor less than what God appoints for them to suffer but as for the absurdity you think you have brought me to by granting that no man wants Authority to defend his own Life against him who hath no Authority to take it away that does not extend to Supreme Powers since though I grant they have no Authority to take away mens Lives contrary to Law yet does it not follow that we may resist and oppose them if they do this I absolutely deny because God hath expresly commanded us not to resist them and I see no inconsistency between these two Propositions that a Prince hath no Legal Authority to take away mens Lives against Law and yet that he must not be resisted when he does so for both the Laws of God and of our Countrey suppose these two to be very consistent F. To answer this long speech of yours the best way may be to shew you first how far I agree with you and wherein I must differ from you and I will also tell you what reasons I have for it In the first place I grant that though our Saviour was indeed the Messias and true King of the Iews yet was he not such a Messias as they expected nor was he to have a Temporal but Spiritual Dominion and therefore would not be such a king though the Iews would have made him so I likewise yield that Christ submitted to the most unjust Sentence and to the most ignominious and painful Death rather than he would resist the Higher Powers though he could easily have called for Legions of Angels to his rescue As also that he rebuked Peter when he drew his Sword in his defence and tells Pilate the reason why he was so easily apprehended and without any Resistance oâ— Opposition My Kingdom said he is not of this World if my Kingdom were of this World then would my Servants fight that I should not be delivered to the Jews but now is my Kingdom not from hence All which plainly shews that our Saviour's Subjection was no matter of force or constraint because he wanted Power to resist but it was matter of choice that which was most suitable to the Nature of his Kingdom which was not to be propagated by Carnal Weapons but by sufferings yet though it may not be propagated sure it may be defended by force In some Cases as if we were invaded by a Foreign Power who made War upon the Account of Religion and also in those Kingdoms or Common-wealths where Christianity or the true Profession of the Gospel is established by Law and makes a part not only of the Ecclesiastical but Civil Constitution of a Nation In these Cases if thoâ—e who pretend to the sole Legislative Power but have it not should go about to alter the National Religion by force and put Men to death contrary to the former Laws and Constitutions of that Kingdom I think such Illegal Powers may lawfully be resisted by the People they having as much right to the free Exercise and Enjoyment of their establish'd Religion as they have to their Liberties Properties or any other Civil Rights since by this Legal Establishment Religion becomes a part of the Civil Constitution of the Kingdom and so may be maintained by the same means as other Rights 2 dly I grant that in all other Cases our Saviour hath so far proposed his sufferings to us for our Imitation as we are engaged by our Baptismal Vow to suffer in the same Cause for which he himself suffered that is for the bearing witness That Iesus is the Christ or true Messias and Son of God And this the Apostle calls speaking of Christ himself the witnessing before Pontius Pilate a good Confession The like I also hold of all such Truths as are the necessary consequences of this great Doctrine 3 dly I farther grant that when our God calls any Person to suffer for the Testimony of his Truth by the Cruelty of those who are the Supreme Powers as the Apostles and Primitive Christians were by a particular Providence that then those Powers are not to be resisted but patiently submitted to by Christians at this day whenever it proves necessary for the same great ends for which Christ at first enjoyned it viz. for bearing witness to the Truth of the Gospel and for the further Propagation thereof by our constant Sufferings and Example according to that saying of the Primitive Fathers Sanguis Martyrum semen Ecclesiae yet is not this absolute Submission to the Supreme Powers in matters of Religion due by the Law of Nature or that delivered to Moses but if at all purely from the express Example of Christ so that all the difficulty lyes in discovering when we are thus called by our Saviour to suffer and bear witness to the Truth though with the loss of our Lives and all that is dear to us And therefore if I should grant that when ever we lye under the same Circumstances of giving this Testimony as the Primitive Christians then did and that it may serve as much for the same ends design'd by God thereby we are also under the same Obligations otherwise I think we are lawfully discharged from it As for Example suppose the King should instead of a Papist have turned Mahometan and to propagate or set up his own abominable Superstition here should have sent for from Turkey or Morocco a great Army of Turks or Moors and by them would force all the Christians in England to turn Mahometans by the same Methods of Dragooning Men and
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
well gather that this was none of the King 's Ordinary or Privy Council or else to what purpose was this Cause adjourned to the meeting of the next Parliament Since if it had been to be determined by the Privy Council it might have been done forthwith I shall give you but one Instance more out of the Close Roll of the 41 of this King wherein a Cause between Elizabeth Wife of Nicholas D'Audley and Iames D'Audley in a Controversie between them touching certain Lands contained in in the Covenants of her Marriage is said to have been adjudged Devant Son Conseil c'est a scavoir Chanceller Thresorier Iustices Aâ—ires Sages assemblez en la Chambre des Etoiles i. e. Before his Council viz. the Chancellor Treasurer Justices and other wise men assembled in the Star-Chamber So that when any thing in our old Statutes is said to be Ordained by the King and his Council it is always to be understood not as if this Council were a fourth Estate whose Assâ—nt or Advice was as necessary to the making of Laws as that of the Lordi Spiritual Temporal and Commons for then they would have had the same Power still but only according to the Custom of those times when most Acts of Parliament were drawn by them and that the King past none without their advice it was then said to be done by the King and his Council viz. in Parliament and I conceive the Power of this Council continued till the beginning of the Reign of Henry the Seventh when this Court being by Act of Parliament annexed to that of the Star-Chamber where also this Council of the King used to meet before as appears by the Case I have last cited and having afterwards only to do with Criminal Causes and that as well out of as in Parliament and that King Hen. 7 th not caring to exercise his Iudicial Power in private Causes as his Predecessors had done or to make use of their advice either in the drawing or passing of Bills which now began to be drawn by Committees in either house wherein those Bills were preferred this Council came by degrees to grow quite out of use as it is at this day I hope you will pardon this long digression which I have been drawn into to rectifie a Common mistake of the Gentlemen of your opinion who when they find any thing in our ancient Statutes or Records wherein the King's Council is mentioned presently entertain strange fancies of the Antiquity and Authority of the Privy Council M. I am so far from thinking this Discourse you have now made to be at all tedious that I give you many thanks for it since it gives me a light into many things which I confess I did not know before and I shall better consider the Authorities you have now given me and if I find they will hold shall come over to your opinion in that point tho I am not as yet satisfied as to the Legistative Power of the two Houses and therefore pray proceed to answer the rest of the Presidents I have brought on that Subject F. I shall readily comply with your Commands and therefore to come to those Statutes of the 15 th and 20 th of Edw. 3. which you suppose to have been repealed by that King without the Consent of the Lords and Commonâ— I grant indeed that the Statutes you mention were intended to be repealâ—d by the King without Assent of Parliament Yet was this not done by himself and his Council alone as you suppose but by a Council of Earls Barons and Commons which the Kings of England in those days were wont to call upon emergent occasions and for the doing of that which they thought Parliaments could not so speedily perform as in this pretended repeal of the Statute you mention And tho I grant this was a great brâ—â—ch upon the fundamental Constitutions of the Kingdom yet that it was done in such a Great Council as I have now mentioned I refer you to this pretended Statute its self and to your recital of it And that the King often called such Great Councils appears by an agreement of Exchange made for the Castle of Berwick between King Hen. IV. in the fifth year of his Reign and the Earl of Northumberland where the King promiseth to deliver to the Earl Lands and Tenements to the value of the Castle by these words which I shall render out of French from the Original which remains in the Tower By the advice and â—ssent of the Estates of the Realm and of his Parliament so that the Parliamâ—nt happen before the Feast of St. Lucie otherwise by the Assent of his Great Council and other Estates of his said Realm which the King will cause to be assembled before the said Feast in case the Parliament do not happen c. And yet notwithstanding this high strain of Prerogative King Edw. III. himself was not satisfied with this repeal of those Statutes you have mentioned but in the next Parliament held in his 17 th year he procured a formal and Legal repeal of them as by the Parliament Rolls of that year remaining in the Tower doth plainly appear And which I could give you at large did I not fear to be too tedâ—ous But I think it fit to let you know this because most ordinary Readers seeing no more appear in Print in our Statute Books are apt to imagin that the Kings of England in those days did often take upon them without Authority of Parliament to make and repeal Laws But as for your next Instance of the Statute of Edw. III. it is much weaker since tho I confess that in the Preface to these Acts there is only mention of the Great Men or Grantz as it is in our old French and other wise Men of our Council yet I shall prove at another time that under this word Grantz were meant the Lords in Parliament as by the wise men of our Council are understood the Commons And therefore it seems most reasonable to interpret the sense of many ancient Statutes wherein the King alone is said to make and ordain Laws by those later or more modern ones wherein the King by the Consent of the Lords and Commons or by Authority of Parliament is said to have Ordained them Since the true Stile and Meaning of ancient Laws which were penned with the greatest brevity ought to be still Interpreted by the Modern ones and not the Modern ones by the Ancient So that I am of the Learned Mr. Lambardâ— opinion who in his Arcbâ—ion or Discourse upon the High Courts of Justice in England expressly tells us That whether the Laws are said to be made by the King and his Wise Men or by the King and his Council or his Common Council or by the King his Earls Barons and other Wise Men or after such other like Phrases whereof you meet with many in the Volumes of Parliaments It comes all to this one
same right by which they took upon them to make this Declaration by the same right not only every Curate of a Parish but also every Layman in England was free to Judge of the Kings breach of this Law and consequently of denying obedience thereunto which disobedience if it once prove general will quickly make the Kings personal commands wholly insignificant So that it seems it is not the Peopleâ— Judging of the Illegality of the Kingâ— Actions and Commands which is the thing you 〈◊〉 fault with since when these Bishops acted thus all the high men of the Church of England praised it to the Skie So that it seems it is now the bare Censuring and Disobedience that makes it a crime but it is the iâ—sisting such Violent and Illegal orders and commands and at last Declaring that Power void and forfeited by which they were made That sticks in your stomach which is as much as to say that this Judging and Disobedience in its self is no Crime but the pushing it home and doing it in such a way as that it may be mended for the future though this is never lawful to be done but when things come to that extremity that all milder remedies are become ineffectual But to answer your Objections a little more closely the consequences of my Opinion are not so dangerous as you suppose them if you will please to consider what I have already laid down at our last Meeting As first That this Resistance is never to be made but when this violent breach of the Laws becomes evident and undeniable not to the Rabble alone but to the whole Nation that is all sorts and degrees or men and as long as there is any question about it I acknowledge it is by no means to be used And lastly As to declare the Regal Power forfeited this likewise is never to be done but when the King becomes so obstinately resolved to pursue those evil and illegal coâ—â—es as that he is utterly irreclaimable and refuses all propositions and terms of amending or redressing them And as to what you say that the King is hereby depriv'd of all means of justifying himself or vindicating his Actions that is not so since if a War be once begun he may do this either by Declaration or Treaties as King Charles the First did in his War with the Parliament by which means he gain'd a great many both of the Nobility Gentry and Commonalty to his Party who were before absolutely set against him But if you will needs have a Parliament to Judge and examine the reality of this forfeiture I so far joyn with you that though every private man may first judge thereof yet is it not become absolute and an Act of the whole People till the Estates of the Kingdom have by some solemn Vote or Declaration made it so M. Well I see you do all you can to make the best of a bad Cause but though I think nothing of what you have said can give Subjectâ— any right to resist much less to cast off all Allegiance to their Natural Prince yet I shall not now dispute this point any longer with you but will proceed to the merits of the Cause and shall lâ—â— you see that even upon your own principles the King has not been dealt 〈◊〉 in all this whole transaction either like an Ally by the States General of the United Provinces or like a near Relation or a Son in-law by the Prince of Orange or like a King by his own Subjects To begin with the Estates in the first place it is apparent that they have acted treacherously with the King and contrary to the last Treaty of Peace and Alliance in furnishing the Prince 〈…〉 their Captain General and 〈◊〉 holder both with Ships Men and Money and make this late Expedition against England without so much as ever declaring the cause of their Quarrel or demanding any satisfaction if any occasion of difference had been given But the Prince of Orange his dealing with the King his Father-in law has been much less justifiable for in the first place he is not only guilty of the same fault with his Masters the Dutch in beginning a War without ever declaring the causes of it or demanding any satisfaction or â—eparation if he had been injur'd till it was too late to go back and that his Fleet was ready and the Army shipt for the Expedition but which was more unkind from a Nephew and a Son-in-law who had reason to expect all the satisfaction which a King an Uncle and a Father-in-law could give though indeed to speak the truth the whole War was in my Opinion altogether unjust on the Pâ—â—nces side since his chief pretences were to redress Grievances and to re-establish the Bishops and Church of England with the Colledges in their just Rights and also restore the whole Nation to the just Execution of the Laws by a Free Parliament and Priviledges Now I desire to know what the Prince of Orange had to do either as a Neighbour or a Son-in-law to concern himself with the Mis-government of the Affairs of England much less to countenance and take the part of those many Male contents and Traitours who have ever since the Duke of Manmouth's Rebellion gone over into Holland So that upon the whole matter I can find but one thing which he had so much as a pretence of making War about if it had been real viz. the pretended suppoâ—â—â—tioâ—s Birth of the Prince of Wales and yet even for this he ought not to have made War till such time as all reasonable satisfaction in this matter had been demanded and denied him and that the next Parliament which the King had before declared should meet in November last had been either hindered from medling in it or that they had faâ—â—'d to make a due enquiry into it But if we look home F. Pray Sir before you come to consider what has been done here give me leave to iustifie the late proceedings of the States General and the Prince of Orange in this matter First as to the Estates it is a very great mistake for you affirm that they made this War upon the King in their own names or furnish'd the Prince of Orange with Ships or Men as their Sâ—adt-holder or General but only as a free Independent Prince whom they looked upon to have a good Cause of making War against the King of England as one they had great cause to believe was so far engag'd in the France interesâ— as instead of standing 〈◊〉 in this War with the Empire which they every day expected when he would joyn with France and declare War against them as they had reason to â—ear by several angry Memorials which the French King's Eâ—voy in Holland had not long before given them so that indeed it was but according to the Rules of Self-preservation to begin first especially when it might be done without their appearing in it at allâ— but granting
so many Years until he finds that instead of a Son he proves an Enemy to his Family or hath so laid wait against his Life that as long as he lives he cannot be safe or else commits some of those heinous crimes which by the Laws of God and Nature do justly deserve no less punishment than Death in short when he ceases any longer to deserve the name of a Son Yet this Authority holds no longer than whilst the Son remains part of his Fathers Family and so Subject to his Power and this I take to be the reason why we do not read that Adam took any notice of Cains's murdering his Brother because he was before freed from his Power by setting up another Family which certainly had been Adam's duty to have done had he been then under his jurisdiction Murder being as great a crime before the Flood as aâ—ter tho' the punishment of in by Death were not positively enjoin'd by God till then But I shall prove this point more particularly by and by as also that Adam's Children might enjoy or enclose some part of the Earth without any grant or assent from Adam to whom you suppose tho' without any proof as yet that the whole Earth was given by God To conclude I doubt you mistook me when you say I at first affirmed that all Civil Government was ordained by God for the benefit or advantage of the the Subjects rather than that of the Governours and therefore you undertake to shew me that in the first and most natural Government viz. that of a Family Children who are subjects in the state of Nature are ordained as much for the benefit and help of their Parents who are their Princes or Masters as their Parents for them in which assertion you fall in to more than on mistake for I do not assert that in Civil Government the benefit or advantage of the Subject is only to be considered For I shall easily grant that Princes may very well challenge a very great share in the honour and other advantages that may be reapt by their Government and yet for all that when the happiness and preservation of the Subjects is incompatible with that of the Prince the former is to be preferred and Bishop Sanderson is of this opinion when he tells us in his Lecture De Iuramento That the end of Civil Government and the obedience that is due to it is the safety and tranquillity of humane society and therefore the end is certainly to be preferred before the means when they cannot both consist together but this is no argument for the preferring the benefit or advantages of Parents before that of their Children since Paternal Government is not Civil Government nor are Fathers absolute Princes or Masters over their Children as you suppose and yet I think I may safely affirm that even in this Paternal Government tho' it be granted that Children are ordained for the benefit or help of their Parents yet when their happiness and preservation is inconsistent with that of their Children it may be a great doubt which is to be prefer'd since Gods chief intention in Parents was for the Preservation and Propagation of Mankind and therefore I cannot see how it could ever be any part of the Paternal Power for a Father to make his Child a Slave or to sell him to others at his pleasure as you suppose This being no part or end of the design or duty of a Father And whereas you lay to my charge my mistaking the true sense of those Civil Law Maxims you have quoted I think I can easily prove that the miâ—â—ake lyes on your side and that you have misapplied them to make them serve your purpose For as to your first Maxim Partus sequitur Ventrem from which you infer that the Child ought to be of the same condition with the Mother this rule in your Civil Law relates only to Bastards and not Legitimate Children who follow the condition of the Father according to your Digest Qui ex uxore mea nascitur filius mariti est habendus so likewise in your Code Cum legitimae nuptiae factae sunt patrem liberi sequuntur vulgo quaesitus matrem sequitur Nor is your second Maxim more true for tho' I grant according to your Roman Law the Father might have absolute power over his Wife and Children yet I cannot see how this word and nascitur can be extended beyond those that are born of a man and his Wife and therefore can never concern Grand-children much less any more remote Descendants and this very Law that a Son or Daughter might be killed by a Father seem'd so cruel and odious even to the Antient Romans themselves that neither the Law of the Twelve Tables nor the Iulian Law of Adulteries which were provided against Fathers Sons and Daughters ever extended it to the Grand-Father Grand-son or Grand-daughter by Interpretation or argument à casâ—â— consimili Nor do these words in Potestate mea est prove more than that all Children are born under the Power of their Parents tho' whether they shall always continue so as long as they live is not to be proved from this Maxim nor if it were doth that make it a Law of Nature For I must needs observe this of divers of you Civilians that what ever Maxim you find in your Civil Law Books that will make for your Notions you presently adopt them for Laws of Nature without ever enquiring by the strict Rules of Reason and the Good of Mankind by which alone any Law of Nature is to be tryed whether they are so or no. I shall not trouble my self to confute those false Conclusions you have brought from those weak Promises for if I have destroyed your Foundation I think your Superstructure cannot stand and therefore you must pardon me if I cannot find this Original Charter of Government and of all Civil Power to be derived from Adam by any Argument that yet you have brought either from Scripture or Reason only give me leave to observe thus much upon what you have said That if not only the Constitution of Civil Power in general but the special Limitation of it to one kind viz. Monarchy be the Ordinance of God I cannot see how any other Government but that can be lawfully set up or obeyed by Men since no Government can challenge this Priviledge against Divine Institution M. Since this Hypothesis doth not please you I shall be glad if you can shew me any better Original either of Adam's Paternal Power or of Civil Government than this that God gave Adam over Eve who indeed was as at the first Subject so the Representative of all that followed and it reaches not only to all her Daughters in relation to their Husbands but to all of them in relation to their Fathers and to her Sons too in relation to both their Father and their Eldest Brother after his Decease if no body